HomeMy WebLinkAbout14-4647Fit ED -
OF 11-1E PROTHONIL
CUMBERLAND
PENNSYLVAICOUNTY
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL CLUB OF SHIPPENSBURG )
(OHIO SPRINGS, INC. T/A SHEETZ, Applicant), ) CIVIL DIVISION
Petitioner/Protestant, ) a
)
)
) STATUTORY APPEAL
) CASE NO. ) —1- Lib y
)
vs. ) PETITION FOR APPEAL FROM
) DECISION OF PENNSYLVANIA
) LIQUOR CONTROL BOARD
)
PENNSYLVANIA LIQUOR CONTROL )
BOARD, )
Respondent. ) Filed on Behalf of Petitioner,
) CIVIL CLUB OF SHIPPENSBURG
)
) Counsel of Record for this Party:
)
) Charles L. Caputo, Esq.
) Pa. I.D. #86058
)
) Nicholas A. Miller, Esq.
) Pa. I.D. #204141
)
) Caputo, Caputo & Regan, P.C.
) Buhl Building, 5th Floor
) 204 Fifth Avenue
) Pittsburgh, PA 15222
) 412-325-0693
) 412-690-2350 (facsimile)
) info@caputolawoffice.com
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C,ILA aosL1g
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION, STATUTORY APPEAL
CIVIL CLUB OF SHIPPENSBURG )
(OHIO SPRINGS, INC. T/A SHEETZ, Applicant), )
)
Petitioner, )
)
)
vs. )
)
)
)
PENNSYLVANIA LIQUOR CONTROL )
BOARD, )
Respondent. )
CASE NO.
PETITION FOR APPEAL FROM DECISION
OF PENNSYLVANIA LIQUOR CONTROL BOARD
Petitioner, Civic Club of Shippensburg, by and through its counsel, Charles L. Caputo,
Esquire, Caputo, Caputo & Regan, P.C., hereby appeals from the July 17, 2014, Decision and
Order of the Pennsylvania Liquor Control Board (the "Board") in Case No. 13-9164, and in
support thereof, avers as follows:
1. Petitioner is a non-profit corporation subsisting and doing business under the laws
of the Commonwealth of Pennsylvania with its principal place of business located at 352 E. King
Street, Shippensburg, Pennsylvania 17257.
2. Petitioner is a restrictive institution located within 300 feet of the proposed
licensed premises under the Pennsylvania Liquor Code and has been granted protestant status by
the Board.
3. Petitioner filed a protest letter with the Board and appeared at the administrative
hearing held on March 18-19, 2014 to contest the application for transfer filed by Ohio Springs,
Inc. t/a Sheetz.
4. Petitioner appeals from the July 17, 2014, Decision and Order of the Board in
Case No. 13-9164, which approved the double inter -municipal transfer of Pennsylvania
Restaurant Liquor License No. R-19377 (the "License") to Ohio Springs, Inc. t/a Sheetz for use
at premises located at 359 E. King Street, Shippensburg, Pennsylvania 17257 (the "Licensed
Premises"). A copy of the Board's Order is attached hereto, made a part hereof and marked as
Exhibit "A".
5. The Board's Order is not supported by any Findings of Fact, Conclusions of Law
or Opinion, which would inform the Petitioner as to the basis for the Board's approval of Ohio
Springs' application, although the same is required by 47 P.S. §4-464.
6. Petitioner avers that the Board's decision was arbitrary, capricious, an abuse of
discretion and contrary to law in that it was not supported by the testimony and evidence offered
at the evidentiary hearing of March 18-19, 2014, and the Order is not fully in accord with
existing law.
7. The Liquor Code does not provide any discretion on the part of the Board to allow
transfers to places, properties or locations which sell gasoline, stating that the Board "shall
refuse any application for a new license, the transfer of any license to a new location ... where
the sale of liquid fuels or oil is conducted." See 47 P.S. § 404 (emphasis added). Additionally,
Section 468 of the Liquor Code Provides: "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. It is clear from the record that Ohio Springs, Inc. t/a Sheetz sells liquid fuels from
the same place, property and location for which the License was approved by the Board.
9. By reason of the foregoing it is asserted that the Board erred and abused its
discretion in approving the double inter -municipal transfer of Pennsylvania Restaurant Liquor
License No. R-19377 to Ohio Springs, Inc. t/a Sheetz for use at premises located at 359 E. King
Street, Shippensburg, Pennsylvania.
10. Petitioner asserts that the Cumberland County Court of Common Pleas is
empowered to hear this appeal de novo and determine this matter independently of the Order
entered by the Board, with the requirement that this Court's decision be based upon findings of
fact supported by the evidence.
WHEREFORE, Petitioner prays that a hearing be held to review the decision of the
Pennsylvania Liquor Control Board, and that this Honorable Court enter an Order reversing the
Order of the Board and refusing the double inter -municipal transfer of Pennsylvania Restaurant
Liquor License No. R-19377 to Ohio Springs, Inc. t/a Sheetz.
Dated: August 4, 2014 Respectfully Submitted,
Charles Laputo, Esquire
Pa. I.D. No. 86058
Caputo, Caputo & Regan, P.C.
Buhl Building, 5th Floor
204 Fifth Avenue
Pittsburgh, PA 15222
412-325-0693
412-690-2350 (facsimile)
info@caputolawoffice.com
Attorneys for Petitioner
Civic Club of Shippensburg
3
VERIFICATION
I, CHARLES L. CAPUTO, ESQUIRE of CAPUTO, CAPUTO & REGAN, P.C., state
that I am the attorney of record for Petitioner, Civic Club of Shippensburg, and that I am
authorized to make this verification on behalf of Petitioner, and that the facts and averments set
forth in the foregoing Petition for Appeal from Decision of Pennsylvania Liquor Control Board
and Application for Supersedeas are true and correct based upon the knowledge, information and
belief as provided to the undersigned by Petitioner. This verification is made subject to the
penalties of 18 Pa. C.S.A. §4904 relating to unsworn statements to authorities, which provides
for criminal penalties if a person, with the intent to mislead, makes a written false statement
which he does not believe to be true. This Verification is made by counsel due to the fact that
Petitioner is not available to review and verify the Petition due to the limitations of time for
submitting this Petition. Additional verifications will be obtained upon request.
Dated: August 4, 2014
4
Charles . Caputo, Esquire
LTRBDPRAPP 07/12
pennsyhrania
LIQUOR CONTROL BOARD
Northwest Office Building
Harrisburg, Pennsylvania 17124-0001
ww,+.Icb.state.pa.us
July 17, 2014
MARK FLAHERTY ESQUIRE
610 SMITHFIELD STREET
SUITE 300
PITTSBURGH PA 15222
RE: License No. R-19377
LID No. 67077
Ohio Springs, Inc.
Sheetz
359 East King Street
Shippensburg, PA 17257-1424
Dear Attorney Flaherty:
After considering the evidence presented at the hearing held on March 18, 2014 and
March 19, 2014, the Pennsylvania Liquor Control Board, at its June 4, 2014 Board Session,
approved the application for "Intermunicipal" double transfer of Restaurant Liquor License
R-19377 to the above captioned location, from Ruby Tuesday, Inc., Hampden 8 Centre,
Hampden Township, Mechanicsburg.
Section 3.52(b) of the Board's Regulations states, "Licensed 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 Board."
Section 404 of the Liquor Code states in part, "The Board 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."
After considering the circumstances in the instant case, the Board also approved the
gas pumps located 80 feet distant and the request for interior connections with an
unlicensed convenience store.
The approval is subject to the following conditions:
1. The 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 Board pending completion of the premises and
verification of full compliance with all statutory requirements.
AN EQUAL OPPORTUNITY EMPLOYER
EXHIBIT
PROCEEDS BENEFIT ALL PENNSYLVANIANS
2
Mark Flaherty, Esquire
July 17, 2014
2. PLCB-1854TP, "Certification of Completion," affirming all financial
arrangements except the costs of construction/renovations to the licensed
premises were completed as originally reported. Both parties must sign
and date the Certification of Completion. The Certification of Completion
must be returned to the Board within 15 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. Completion 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. Upon completion of the premises, the following will be required to initiate
final inspection:
• Form PLCB-1689, "Application For Return of License From Safekeeping" and
requisite fee.
• PLCB-1854-TPF, "Certification of Completion," affirming all financial
arrangements including the costs of construction/renovations to the
licensed premises were completed as originally reported. If the
financing has been modified the changes will be verified by the
investigating officer during the final inspection of the premises.
• One photograph at least 4" x 6" in size, of the exterior and main
serving room. The photographs must have a matte finish.
Documentary evidence that a valid health license is displayed on the
premises. This may be in the form of a photocopy or a written statement
from the issuing authority.
• At the time of the investigation,the premises must be ready for
operation as a bona fide restaurant.
• Upon completion of the premises the attached forms should be completed
naming a manager and returned to this office together with the required
fee. One recent photograph of this individual must also be submitted.
The photograph must have a matte finish.
All above mentioned forms are attached for your client's convenience. Please retain
for use when construction and/or alterations are completed.
Your client's application is being approved in accordance with Section 461 of the
Liquor Code 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.
AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
3
Mark Flaherty, Esquire
July 17, 2014
If 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 Application for Off -Premises Catering Permit (form PLCB-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 Board's Order is attached.
Please see that your client receives the attached copy of this letter.
Sincerely,
—7-7 W . Gu �✓.
Jerry W. Waters, Sr., Director
Office of Regulatory Affairs
Refer to: Licensing Board Case Section
(717)787-6728
Hours:7:30 AM to 4:00 PM
JWW:ch
AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
ITRBDPRAPP 07/12
pennsyLvania
LIQUOR CONTROL BOARD
Northwest Office Building
Harrisburg, Pennsylvania 17124-0001
uww.Icb.state.pa.us
July 31, 2014
MARK FLAHERTY ESQUIRE
610 SMITHFIELD STREET
SUITE 300
PITTSBURGH PA 15222
AMENDED
RE: License No. R-19377
LID No. 67077
Ohio Springs, Inc.
Sheetz
359 East King Street
Shippensburg, PA 17257-1424
Dear Attorney Flaherty:
After considering the evidence presented at the hearing held on March 18, 2014 and
March 19, 2014, the Pennsylvania Liquor Control Board, at its July 16, 2014 Board Session,
approved the application for "Intermunicipal" double transfer of Restaurant Liquor License
R-19377 to the above captioned location, from Ruby Tuesday, Inc., Hampden 8 Centre,
Hampden Township, Mechanicsburg.
Section 3.52(b) of the Board's Regulations states, "Licensed 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 Board."
Section 404 of the Liquor Code states in part, "The Board 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."
After considering the circumstances in the instant case, the Board also approved the
gas pumps located 80 feet distant and the request for interior connections with an
unlicensed convenience store.
The approval is subject to the following conditions:
1. The 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 Board pending completion of the premises and
verification of full compliance with all statutory requirements.
AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
2
Mark Flaherty, Esquire
July 31, 2014
2. PLCB-1854TP, "Certification of Completion," affirming all financial
arrangements except the costs of construction/renovations to the licensed
premises were completed as originally reported. Both parties must sign
and date the Certification of Completion. The Certification of Completion
must be returned to the Board within 15 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. Completion 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. Upon completion of the premises, the following will be required to initiate
final inspection:
• Form PLCB-1689, "Application For Return of License From Safekeeping" and
requisite fee.
• PLCB-1854-TPF, "Certification of Completion," affirming all financial
arrangements including the costs of construction/renovations to the
licensed premises were completed as originally reported. If the
financing has been modified the changes will be verified by the
investigating officer during the final inspection of the premises.
• One photograph at least 4" x 6" in size, of the exterior and main
serving room. The photographs must have a matte finish.
• Documentary evidence that a valid health license is displayed on the
premises. This may be in the form of a photocopy or a written statement
from the issuing authority.
• At the time of the investigation, the premises must be ready for
operation as a bona fide restaurant.
• Upon completion of the premises the attached forms should be completed
naming a manager and returned to this office together with the required
fee. One recent photograph of this individual must also be submitted.
The photograph must have a matte finish.
All above mentioned forms are attached for your client's convenience. Please retain
for use when construction and/or alterations are completed.
Your client's application is being approved in accordance with Section 461 of the
Liquor Code 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.
AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
3
Mark Flaherty, Esquire
July 31, 2014
If 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 Application for Off -Premises Catering Permit (form PLCB-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 Board's Order is attached.
Please see that your client receives the attached copy of this letter.
Sincerely,
/ w
Jerry W. Waters, Sr., Director
Office of Regulatory Affairs
Refer to: Licensing Board Case Section
(717)787-6728
Hours:7:30 AM to 4:00 PM
JWW:ch
AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
ORDER 11/07
BEFORE THE PENNSYLVANIA LIQUOR CONTROL BOARD
OHIO SPRINGS, INC.
Sheetz
359 East King Street
Shippensburg, PA 17257-1424
Case No. 13-9164
LID No. 67077
Application filed on a Prior
Approval Basis for
"Intetrmunicipal" Double
Transfer of Restaurant Liquor
License R-19377
The Board, after giving careful consideration to all of the facts established at the
hearing, and in the exercise of its discretion, makes the following Order:
ORDER
AND NOW, July 17, 2014, it is ordered and decreed that the Pennsylvania Liquor
Control Board approved the application for "Intermunicipal" double transfer of Restaurant
Liquor License R-19377 applied for by Ohio Springs, Inc., Sheetz for premises at 359 East
King Street, Shippensburg, Cumberland County. In the event an appeal is filed an Opinion
will be issued.
Alvin Oberholtzer, Sharon Hershey, Lewis Deardorff, and Luke and Lois Martin 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
Applicant's application.
Jaye Alleman should be granted standing as a protestant in the instant matter
because he resides within 500 feet of the proposed licensed premises.
The Civic Club of Shippensburg 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 Mummau 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 Applicant's application.
James Andrews should not be granted standing•as an intervenor
he did not provide sufficient non -speculative evidence on how
aggrieved by the approval of Applicant's application.
Terry Helm should not be granted standing as an intervenor in
did not provide sufficient good cause for his late -filed petition.
Gabler's Beverage Distributor should be granted standing as
matter based on the Ohio Springs and Wegmans' decisions.
in this matter because
he would be directly
this matter because he
an intervenor in this
Ohio Springs, Inc.
July 17, 2014
PKD, Inc. should be granted standing as an intervenor in this matter based on the
Ohio Springs and s' decisions.
Malt Beverage Distributors Association should be granted standing as an intervenor
in this matter based on the Ohio Springs and Wegmans' decisions.
PENNSYLVANIA LIQUOR CONTROL BOARD
Joseph E. Brion
BY: Chairman
Robert S. Marcus
Member
Tim Holden
Member
ATTEST:
John K. Stark
Secretary
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the within PETITION FOR APPEAL
FROM DECISION OF PENNSYLVANIA LIQUOR CONTROL BOARD was forwarded to
the parties and counsel listed below by facsimile and U.S. Mail, postage prepaid, this 5 th day of
August, 2014.
Faith S. Diehl, Esquire
Pennsylvania Liquor Control Board
Office of Chief Counsel
401 Northwest Office Building
Capital and Forster Streets
Harrisburg, PA 17124-0001
Commonwealth of Pennsylvania
Pennsylvania Liquor Control Board
Bureau of Licensing
Northwest Office Building, Room 108
Harrisburg, PA 17124-0001
ATTENTION: Tisha Albert
Mark Flaherty, Esquire
Flaherty & O'Hara, P.C.
610 Smithfield Street, Suite 300
Pittsburgh, PA 15222
Charles 1/Caputo, Esquire
Counsel for Petitioner
6
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL CLUB OF SHIPPENSBURG
(OHIO SPRINGS, INC. T/A SHEETZ, applicant),
Petitioner/Protestant,
vs.
PENNSYLVANIA LIQUOR CONTROL
BOARD
Respondent.
{F1074233.1}
CIVIL DIVISION
STATUTORY APPEAL
CASE NO. 14-4647
NOTICE OF INTERVENTION
Filed on behalf of Intervenor,
Ohio Springs, Inc. t/a SHEETZ
Counsel of Record for this Party
Mark F. Flaherty, Esquire
Pa. I.D. #46596
Stanley J. Wolowski, Esquire
Pa. I.D. # 32978
Mark E. Kozar, Esquire
Pa. I.D. No. 78541
Flaherty & O'Hara, P.C.
610 Smithfield Street, Suite 300
Pittsburgh, PA 15212
412-456-2001
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION, STATUTORY APPEAL
CIVIL CLUB OF SHIPPENSBURG )
(OHIO SPRINGS, INC. T/A SHEETZ, applicant), )
)
)
Petitioner/Protestant, )
)
)
vs. )
)
)
PENNSYLVANIA LIQUOR CONTROL )
BOARD )
Respondent. )
CASE NO. 14-4647
NOTICE OF INTERVENTION
Notice is hereby given that Ohio Springs, Inc. t/a SHEETZ, a party below, hereby
intervenes in this matter.
Stanley J. Wolowski, Esquire
Pa. I.D. No. 32978
Mark E. Kozar, Esquire
Pa. I.D. No. 78541
Flaherty & O'Hara, P.C.
610 Smithfield Street, Suite 300
Pittsburgh, PA 15222
{F1074233.1 }
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the within NOTICE OF
INTERVENTION was forwarded to the parties and counsel listed below by facsimile
and U.S. Mail, postage prepaid, this g day of August, 2014:
Faith S. Diehl
Pennsylvania Liquor Control Board
PA Liquor Control Board
401 NW Ofc Bldg
Harrisburg, PA 17124-0001
(717) 783-9454
Commonwealth of Pennsylvania
Pennsylvania Liquor Control Board
Bureau of Licensing
Northwest Office Building, Room 108
Capital and Forster Streets
Harrisburg, PA 17124-0001
Charles L. Caputo, Esq.
Caputo, Caputo & Regan, P.C.
204 5th Ave, Floor 5
Pittsburgh, PA 15222-2706
(412) 325-0693
Nicholas A. Miller, Esq.
Caputo, Caputo & Regan, P.C.
204 5th Ave, Floor 5
Pittsburgh, PA 15222-2706
{F1074233.1}
la erty,
Counsel for Interve
squire
or
1
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION, STATUTORY APPEAL
CIVIL CLUB OF SHIPPENSBURG )
(OHIO SPRINGS, INC. T/A SHEETZ, Applicant), )
Petitioner, ) Ou; (, fCASE NO. )4,
vs. )
PENNSYLVANIA LIQUOR CONTROL )
BOARD, )
Respondent. )
ORDER OF COURT
AND NOW, to -wit, this heday of aural, , 2014, upon consideration of the
within Petition for Appeal it is hereby ORDERED, ADJUDGED and DECREED as follows:
A hearing on the Appeal of the Petitioner is hereby scheduled for the qday of
?J, 2011, before the Honorable Judge 7(.jytJ at /d : 3e
o'clock 4 .m in Courtroom No. /
044-11 !.tafizliY
BY THE COURT,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION, STATUTORY APPEAL
CIVIL CLUB OF SHIPPENSBURG )
(OHIO SPRINGS, INC. T/A SHEETZ, applicant), )
)
)
Petitioner/Protestant, )
)
)
vs. )
)
)
PENNSYLVANIA LIQUOR CONTROL )
BOARD )
Respondent. )
ORDER
CASE NO. 14-4647
AND NOW, this / 3 v day of 41 w» , 2014, upon consideration of the Notice to
Intervene filed by Ohio Springs, Inc. t/a SHEETZ, it is hereby ORDERED that
Intervenor status to Ohio Spring, Inc. T/A SHEETZ is GRANTED.
{F1074233.1}
BY THE COURT:
.4 ,/
BEFORE THE PENNSYLVANIA LIQUOR CONTROL BOARD
IN RE: •
•
OHIO SPRINGS, INC. •
t/a Sheetz •
359 East King Street :
Shippensburg, PA 17257-14241 :
19-(449117
Case No. 13-91.€4
Application for Intermunicipal
Double Transfer of Restaurant
Liquor License No. R-19377
(LID 67077)
OPINION
Ohio Springs, Inc. t/a Sheetz ("Applicant") filed its application on
a prior approval basis with the Pennsylvania Liquor Control Board
("Board") for the intermunicipal double transfer of Restaurant Liquor
License No. R-19377 to 359 East King Street, Shippensburg,
Pennsylvania ("proposed licensed premises").
The Board's Bureau of Licensing ("Licensing"), pursuant to
section 464 of the Liquor Code [47 P.S. § 4-464], ordered that a
hearing be held with respect to Applicant's transfer application
regarding thirteen (13) specific objections. Hearings were held in
Harrisburg, Pennsylvania, on March 18 and 19, 2014, before the same
Board hearing examiner. Based upon its review of the record from
that hearing, the Board, by Order dated July 17, 2014, granted prior
1 Last four (4) digits of zip code were not specified in caption.
1
approval of Applicant's intermunicipal double transfer application.2
This Opinion is issued in support of the Board's Order.
FINDINGS OF FACT
1. On July 30, 2012, Applicant filed a prior approval application
for the intermunicipal double transfer of Restaurant Liquor License No.
R-19377 from Ruby Tuesday, Inc., located at Hampden 8 Centre,
Mechanicsburg, Pennsylvania, to Applicant, for its premises located at
359 East King Street, Shippensburg, Pennsylvania. Ruby Tuesday,
Inc. is located in Hampden Township; the proposed licensed premises
is located in the Borough of Shippensburg. Both locations are located
in Cumberland County. (N.T. 03/18/2014 at 5-8; Ex. B-1).
2. Applicant requested that its application be considered for prior
approval.3 (N.T. 03/18/2014 at 5-8; Ex. B-1).
3. Applicant's proposed licensed areas are: a serving area
measuring thirty-two (32) feet eighteen (18) feet that will
accommodate thirty-eight (38) patrons; two (2) serving areas with no
2 The Board granted standing as intervenors in the instant matter to Gabler's Beverage
Distributor, Inc., PKD, Inc., and Malt Beverage Distributor's Association. The Board denied
intervenor standing to Alvin Oberholtzer, Sharon Hershey, Lewis Deardorff, Luke and Lois
Martin, John Mummau, James Andrews, and Terry Helm. The Board granted standing as
protestants to Jaye Alleman and the Civic Club of Shippensburg.
3 The Board may grant prior approval to an applicant whose proposed licensed prernises is
not yet complete.
2
seating for patrons, measuring eighty (80) feet by thirty-seven (37)
feet and ten (10) feet by six (6) feet; two (2) kitchen areas,
measuring thirty (30) feet by twenty-three (23) feet and fifty-eight
(58) feet by twelve (12) feet; an office area measuring nine (9) feet
by ten (10) feet; and seven (7) storage areas, measuring twenty-two
(22) feet by thirty-eight (38) feet, twenty (20) feet by thirty-two (32)
feet, thirteen (13) feet by nine (9) feet, thirteen (13) feet by
seventeen (17) feet, seven (7) feet by seven (7) feet, seventeen (17)
feet by seven (7) feet, and thirteen (13) feet by six (6) feet. (N.T.
03/18/2014 at 5-8; Ex. B-1).
4. The quota of retail licenses in Shippensburg Borough,
Cumberland County, is one (1), and there are three (3) restaurant
liquor licenses and one (1) eating place malt beverage license in effect
counted against the quota, plus two (2) hotel liquor licenses and four
(4) catering club liquor licenses not counted against the quota. (N.T.
03/18/2014 at 6-8; Ex. B-2).
5. By letter dated October 23, 2013, Licensing informed
Applicant, through its attorney, that a hearing would be held in
Harrisburg, Pennsylvania on November 19, 2013 and will continue on
November 20, 2013, if necessary, for the purpose of taking testimony
regarding the following objections:
3
1. The applicant has failed to submit individual
photographs of proposed corporate officers, Thomas
Luciano, Thomas Patton[,] and Gary Zimmerman.
2. The Board shall take evidence to determine if it
should permit an interior connection with the
unlicensed convenience store in accordance with
Section 3.52(b) of the Board's Regulations [(40 Pa.
Code § 3.52(b))].
The Board shall take evidence to determine what
"take home products" consist of which are intended
to be sold in the adjacent unlicensed area.
4. The Board shall take evidence to determine what
convenience store items the applicant intends to sell
on the licensed premises.
5. The Board shall take evidence to determine whether
it should permit the applicant to operate another
business (convenience store items) on the licensed
premises in accordance with Section 3.52(c) of the
Board's Regulations [(40 Pa. Code § 3.52(c))].
6. The Board shall take evidence to determine if the
applicant will allow minors to frequent its licensed
premises, in violation of Section 493(14) of the
Liquor Code [(47 P.S. § 4-493(14))].
7. The Board shall take evidence concerning the sale of
liquid fuels or oil at the same location as the
proposed licensed premises, which is prohibited by
Section 404 of the Liquor Code [(47 P.S. § 4-404)].
8 The Board shall take evidence to determine if there
are valid reasons for filing their petitions -to -intervene
late and if Alvin Oberholtzer, Terry Helm, and Sharon
Hershey would be directly aggrieved by the granting
of this application, which would qualify them as
intervenors in this matter.
4
9. The Board shall take evidence to determine if John
Mummau, Lewis Deardorff, Luke and Lois Martin,
James Andrews{,] and the Civic Club of Shippensburg
would be directly aggrieved by the granting of this
application, which would qualify them as intervenors
in this matter.
10. The Board shall take evidence to determine if the
Malt Beverage Distributors Association (MBDA),
Gabler's Beverage Distributor, Inc.[,] and PKD, Inc.
would be directly aggrieved by the granting of this
application, which would qualify them as intervenors
in this matter. See In re Application of Family Style
Restaurant, Inc., 503 Pa. 109, 468 A.2d 1088
(1983); Malt Bevs. Distribs. Ass'n v. Pa. Liquor
Control Bd., 881 A.2d 37 (Pa. Cmwlth. 2005).
11. The Board shall take evidence to determine that the
approval of this application will not adversely affect
the health, welfare, peace and morals of the
neighborhood within a radius of 500 feet of the
proposed licensed premises.
12. A timely -filed, valid protest was received from Jaye
Alleman, a resident within 500 feet of the proposed
licensed premises.
(N.T. 03/18/2014 at 6-8; Ex. B-3).
6. By letter dated November 8, 2013, Licensing informed
Applicant, through its attorney, that a hearing would be held in
Harrisburg, Pennsylvania on November 19, 2013 and will continue on
November 20, 2013, if necessary, for the purpose of taking testimony
regarding the following amended objections:
5
1. The applicant has failed to submit individual
photographs of proposed corporate officers, Thomas
Luciano, Thomas Patton[,] and Gary Zimmerman.
2. The Board shall take evidence to determine if it
should permit an interior connection with the
unlicensed convenience store in accordance with
Section 3.52(b) of the Board's Regulations [(40 Pa.
Code § 3.52(b))].
The Board shall take evidence to determine what
"take home products" consist of which are intended
to be sold in the adjacent unlicensed area.
4. The Board shall take evidence to determine what
convenience store items the applicant intends to sell
on the licensed premises.
5. The Board shall take evidence to determine whether
it should permit the applicant to operate another
business (convenience store items) on the licensed
premises in accordance with Section 3.52(c) of the
Board's Regulations [(40 Pa. Code § 3.52(c))].
6. The Board shall take evidence to determine if the
applicant will allow minors to frequent its licensed
premises, in violation of Section 493(14) of the
Liquor Code [(47 P.S. § 4-493(14))].
7. The Board shall take evidence concerning the sale of
liquid fuels or oil at the same location as the
proposed licensed premises, which is prohibited by
Sections 404 and/or 468 of the Liquor Code [(47 P.S.
§§ 4-404, 4-468)].
8. The Board shall take evidence to determine if there
are valid reasons for filing their petitions -to -intervene
late and if Alvin Oberholtzer, Terry Helm, and Sharon
Hershey would be directly aggrieved by the granting
of this application, which would qualify them as
intervenors in this matter.
6
9. The Board shall take evidence to determine if John
Mummau, Lewis Deardorff, Luke and Lois Martin,
James Andrews[,] and the Civic Club of Shippensburg
would be directly aggrieved by the granting of this
application, which would qualify them as intervenors
in this matter.
10. The Board shall take evidence to determine if the
Malt Beverage Distributors Association (MBDA),
Gabler's Beverage Distributor, Inc.[,] and PKD, Inc.
would be directly aggrieved by the granting of this
application, which would qualify them as intervenors
in this matter. See In re Application of Family Style
Restaurant, Inc., 503 Pa. 109, 468 A.2d 1088
(1983); Malt Bevs. Distribs. Ass'n v. Pa. Liquor
Control Bd., 881 A.2d 37 (Pa. Cmwlth. 2005).
11. The Board shall take evidence to determine that the
approval of this application will not adversely affect
the health, welfare, peace and morals of the
neighborhood within a radius of 500 feet of the
proposed licensed premises.
12. A timely -filed, valid protest was received from Jaye
Alleman, a resident within 500 feet of the proposed
licensed premises.
(N.T. 03/18/2014 at 6-8; Ex. B-4).
7. By letter dated February 10, 2014, Licensing informed
Applicant, through its attorney, that the hearing that was scheduled
for November 19, 2013 and postponed, would be rescheduled for
March 18, 2014 and continued to March 19, 2014, if needed, in
Harrisburg, Pennsylvania for the purpose of taking testimony regarding
the following amended objections:
7
1. The Board shall take evidence to determine if it
should permit an interior connection with the
unlicensed convenience store in accordance with
Section 3.52(b) of the Board's Regulations [(40 Pa.
Code § 3.52(b))].
2. The Board shall take evidence to determine what
"take home products" consist of which are intended
to be sold in the adjacent unlicensed area.
The Board shall take evidence to determine what
convenience store items the applicant intends to sell
on the licensed premises.
4. The Board shall take evidence to determine whether
it should permit the applicant to operate another
business (convenience store items) on the licensed
premises in accordance with Section 3.52(c) of the
Board's Regulations [(40 Pa. Code § 3.52(c))].
5. The Board shall take evidence to determine if the
applicant will allow minors to frequent its licensed
premises, in violation of Section 493(14) of the
Liquor Code [(47 P.S. § 4-493(14))].
6. The Board shall take evidence concerning the sale of
liquid fuels or oil at the same location as the
proposed licensed premises, which is prohibited by
Sections 404 and/or 468 of the Liquor Code [(47 P.S.
§§ 4-404, 4-468)].
7. The Board shall take evidence to determine if there
are valid reasons for filing their petitions -to -intervene
late and if Alvin Oberholtzer, Terry Helm, and Sharon
Hershey would be directly aggrieved by the granting
of this application, which would qualify them as
intervenors in this matter.
8. The Board shall take evidence to determine if John
Mummau, Lewis Deardorff, Luke and Lois Martin,
James Andrews[,] and the Civic Club of Shippensburg
8
would be directly aggrieved by the granting of this
application, which would qualify them as intervenors
in this matter.
9. The Board shall take evidence to determine if the
Malt Beverage Distributors Association (MBDA),
Gabler's Beverage Distributor, Inc.[,] and PKD, Inc.
would be directly aggrieved by the granting of this
application, which would qualify them as intervenors
in this matter. See In re Application of Family Style
Restaurant, Inc., 503 Pa. 109, 468 A.2d 1088
(1983); Malt Bevs. Distribs. Ass'n v. Pa. Liquor
Control Bd., 881 A.2d 37 (Pa. Cmwlth. 2005).
10. The Board shall take evidence to determine that the
approval of this application will not adversely affect
the health, welfare, peace and morals of the
neighborhood within a radius of 500 feet of the
proposed licensed premises.
11. A timely -filed, valid protest was received from Jaye
Alieman, a resident within 500 feet of the proposed
licensed premises.
(N.T. 03/18/2014 at 6-8; Ex. B-5).
8. By letter dated March 3, 2014, Licensing informed Applicant,
through its attorney, that a hearing would be held in Harrisburg,
Pennsylvania on March 18, 2014 and would continue on March 19,
2014, if necessary, for the purpose of taking testimony regarding the
following amended objections:
1. The Board shall take evidence to determine if the
proposed licensed premises will be located within 300
feet of a charitable institution as defined by Section
404 of the Liquor Code [(47 P.S. § 4-404)].
9
2. The Board shall take evidence to determine if it
should permit an interior connection with the
unlicensed convenience store in accordance with
Section 3.52(b) of the Board's Regulations [(40 Pa.
Code § 3.52(b))].
3. The Board shall take evidence to determine what
"take home products" consist of which are intended
to be sold in the adjacent unlicensed area.
4. The Board shall take evidence to determine what
convenience store items the applicant intends to sell
on the licensed premises.
5. The Board shall take evidence to determine whether
it should permit the applicant to operate another
business (convenience store items) on the licensed
premises in accordance with Section 3.52(c) of the
Board's Regulations [(40 Pa. Code § 3.52(c))].
6. The Board shall take evidence to determine if the
applicant will allow minors to frequent its licensed
premises, in violation of Section 493(14) of the
Liquor Code [(47 P.S. § 4-493(14))].
7. The Board shall take evidence concerning the sale of
liquid fuels or oil at the same location as the
proposed licensed premises, which is prohibited by
Sections 404 and/or 468 of the Liquor Code [(47 P.S.
§§ 4-404, 4-468)].
8. The Board shall take evidence to determine if there
are valid reasons for filing their petitions -to -intervene
late and if Alvin Oberholtzer, Terry Helm, and Sharon
Hershey would be directly aggrieved by the granting
of this application, which would qualify them as
intervenors in this matter.
9. The Board shall take evidence to determine if John
Mummau, Lewis Deardorff, Luke and Lois Martin,
James Andrews [would] be directly aggrieved by the
10
granting of this application, which would qualify them
as intervenors in this matter.
10. The Board shall take evidence to determine if the
Civic Club of Shippensburg meets the requirements
of a charitable institution as defined under Section
404 of the Liquor Code and any relevant case law
and/or if they would be directly aggrieved by the
granting of this application, which would qualify them
as an intervenor in this matter [(47 P.S. § 4-404)].
11. The Board shall take evidence to determine if the
Malt Beverage Distributors Association (MBDA),
Gabler's Beverage Distributor, Inc. and [PKD, Inc.
would be directly aggrieved by the granting of this
application,] which would qualify them as intervenors
in this matter. See In re Application of Family Style
Restaurant, Inc., 503 Pa. 109, 468 A.2d 1088 PKD,
Inc. would be directly aggrieved by the granting of
this application, (sic) (1983); Malt Bevs. Distribs.
Ass'n v. Pa. Liquor Control Bd., 881 A.2d 37 (Pa.
Cmwlth. 2005).
12. The Board shall take evidence to determine that the
approval of this application will not adversely affect
the health, welfare, peace and morals of the
neighborhood within a radius of 500 feet of the
proposed licensed premises.
13. A timely -filed, valid protest was received from Jaye
Alleman, a resident within 500 feet of the proposed
licensed premises.
(N.T. 03/18/2014 at 6-8; Ex. B-6).
9. On July 17, 2012, the Borough of Shippensburg adopted
Resolution No. 12-015, approving the proposed intermunicipal transfer
of Restaurant Liquor License No. R-19377 into the Borough of
11
Shippensburg by Applicant. (N.T. 03/18/2014 at 7-8; Ex. B-8).
10. Timothy Lamark is a Licensing supervisor and he was assigned
to investigate Applicant's transfer application. (N.T. 03/18/2014 at 9).
11. The Civic Club of Shippensburg ("Civic Club") is the only
restrictive institution located within three hundred (300) feet of the
proposed licensed premises. It is located one hundred ninety-four
(194) feet from the proposed licensed premises' property line and two
hundred five (205) feet from Applicant's building. (N.T. 03/18/2014 at
10).
12. The Civic Club was closed when Mr. Lamark initially went to
the proposed licensed premises, but he talked to two (2) of the Civic
Club's members, Priscilla Smith and Jean Eschenman, via the
telephone regarding the Civic Club. (N.T. 03/18/2014 at 12-13).
13. Ms. Smith and Ms. Eschenman told Mr. Lamark the Civic Club
had artifacts, provided tours, and had digs on its side lawn for
artifacts, but he did not remember "exactly what" the Civic Club did.
The Civic Club did not have the "typical things" that Mr. Lamark
normally sees in a restrictive institution. (N.T. 03/18/2014 at 12, 30).
14. Mr. Lamark did not conduct an investigation of the Civic Club's
non-profit status nor did he recall inquiring as to what the Civic Club's
mission and purpose was. (N.T. 03/18/2014 at 28-30).
12
15. During the telephone call, Mr. Lamark advised Ms. Smith and
Ms. Eschenman to contact Licensing if "they wanted to pursue further
action." (N.T. 03/18/2014 at 12).
16. The neighborhood within a radius of five hundred (500) feet of
the proposed licensed premises is sixty percent (60%) residential and
forty percent (40%) commercial. (N.T. 03/18/2014 at 14).
17. The proposed licensed premises will have three (3) serving
rooms, seven (7) storage rooms, two (2) kitchens, and an office.
There will be an adjoining but separate smaller unlicensed convenience
store area with an interior connection to the proposed licensed
premises being four (4) feet wide. (N.T. 03/18/2014 at 14).
18. Mr. Lamark understood the premises would "act as a normal
Sheetz convenience store;" it will provide food via "made to order
screen[s]" and it will also have food items, such as chips and snacks in
the aisles. The proposed licensed premises will permit on -premises
consumption of beer and food. (N.T. 03/18/2014 at 15-16).
19. Applicant's unlicensed premises will provide "take-home
products," such as dairy, bulk soda, and candy. Also, this area will
have coolers for its refrigerated products. (N.T. 03/18/2014 at 15-
16).
20. Applicant's plan provided to Mr. Lamark showed that Applicant
13
would accept payment for gasoline at the unlicensed area of its
convenience store. However, Mr. Lamark testified that based on his
prior discussions with Applicant, he was not able to contradict the
statement that Applicant's gasoline sales would occur at the pumps
and no payment for gasoline would occur at the unlicensed area of the
convenience store. (N.T. 03/18/2014 at 64-67).
21. Applicant provided Mr. Lamark with a site plan that showed it
was planning on selling liquid fuels at drive -up fuel pumps located
approximately eighty (80) feet from the proposed licensed premises.
Also, the site plan shows a continuous speed bump between the
unlicensed gas pump area and the proposed licensed premises,
approximately five (5) feet from the gas pump area. Lastly, the site
plan showed a parking lot with parking lanes, curb, bumper posts,
patio area, and sidewalk, between the speed bump and proposed
licensed premises. (N.T. 03/18/2014 at 16-17, 49-51 53-55, 67-68;
Ex. B-7).
22. Applicant initially advised Mr. Lamark that kerosene would be
sold at an unlicensed area at the Shippensburg Sheetz facility,
approximately forty-five (45) feet from the proposed licensed
premises. However, Applicant's attorney, Mr. Flaherty, later advised
Licensing that kerosene would not be sold on the premises. (N.T.
14
03/18/2014 at 17, 49, 55-58; Ex. B-7).
23. Mr. Lamark acknowledged that it is not unusual for an
applicant of a liquor license to make changes to its site plan or floor
plan after the Licensing's analyst's initial investigation had been
completed, but before the Board had approved the license. Applicant
did not provide Mr. Lamark with an updated site plan. (N.T.
03/18/2014 at 62-63, 65-66).
24. Applicant advised Mr. Lamark that propane canisters would be
sold on the unlicensed premises. (N.T. 03/18/2014 at 49, 72-74).
25. The unlicensed portion of Applicant's building will have its own
cash register and the proposed licensed premises will have three (3)
cash registers. Mr. Lamark's understanding is that Applicant's patrons
can purchase food, beer, and non-alcoholic beverages only at the
proposed licensed premises' cash registers. (N.T. 03/18/2014 at 17-
18).
26. Applicant did not indicate to Mr. Lamark the steps it was
planning on taking to prevent sales to minors. (N.T. 03/18/2014 at
18).
27. Mr. Lamark indicated that an applicant provides Licensing with
its proposed plans for an application submitted for prior approval and
Licensing conducts an inspection when the construction of the
15
proposed licensed premises has been completed. (N.T. 03/18/2014 at
21-22).
28. There will be one (1) direct interior connection between the
proposed licensed premises and unlicensed convenience store area.
There will be two (2) proposed exterior entrances to Applicant's
unlicensed area and three (3) proposed exterior entrances to the
proposed licensed premises. Mr. Lamark was not sure how many of
the exterior entrances will be open to the public. (N.T. 03/18/2014 at
22; Ex. B-7).
29. There are no other licensees located within five hundred (500)
feet of the proposed licensed premises that sell alcohol. (N.T.
03/18/2014 at 26).
30. Applicant provided Mr. Lamark with a copy of a lease, which
was separated into two (2) units, one (1) being the proposed licensed
premises and the second being the unlicensed premises. The parties
to the lease are the owner, CSP Investments, Inc. (lessor) and
Applicant (lessee). (N.T. 03/18/2014 at 30-33, 35).
31. Any time Licensing receives an application for a liquor license
which has a connection to an unlicensed business, Licensing reviews
the lease and makes a determination who owns and operates the
building. (N.T. 03/18/2014 at 32-33).
16
32. Applicant provided its sources of funds for the construction of
the building where Applicant's premises will be located to Licensing.
(N.T. 03/18/2014 at 39-40).
33. Applicant will not have any licensed outside serving areas, but
there will be outside seating areas. The outside seating areas will be
located in front of the common foyer, in front of the twenty-two (22)
feet by thirty-eight (38) feet walk-in cooler storage area, and to the
left of the thirty (30) feet by twenty-three (23) feet kitchen area.
(N.T. 03/18/2014 at 41-44; Ex. B-7).
34. Applicant advised Mr. Lamark that it estimated ninety-five
percent (95%) of its anticipated beer sales will be attributable to take-
out beer. (N.T. 03/18/2014 at 46-47).
35. Mr. Lamark verified that the street address of 359 East King
Street was the correct street address for Applicant's premises. (N.T.
03/18/2014 at 59-60).
36. Mr. Lamark determined that Applicant's Notice of Application
was properly posted on August 6, 2012, with a posting date of July 30,
2012. (N.T. 03/18/2014 at 60, 71-72).
37. Terry Helm resides at 225 East Garfield Street in
Shippensburg; his residence is located a couple blocks from the
proposed licensed premises. Mr. Helm filed a petition to intervene in
17
the instant matter. (N.T. 03/18/2014 at 78-80).
38. Mr. Helm indicated that where he previously lived, a licensee
opened and there was trash, urinating in the streets, and a report of
vandalism to a neighbor's car. Mr. Helm believed licensing the
proposed licensed premises would add "fuel to the fire/' because there
would be traffic problems, public drunkenness, and parking problems.
(N.T. 03/18/2014 at 81-83).
39. Mr. Helm believes the more alcohol that is sold, the more
problems that will occur and he is opposed to any licensed
establishment operating in the Borough of Shippensburg, not just
Applicant. Mr. Helm also is opposed to having the Board's Wine and
Spirits Stores located in the Borough of Shippensburg. (N.T.
03/18/2014 at 83-84, 87).
40. Mr. Helm indicated that the current Shippensburg Sheetz
location is a "madhouse" because "[t]he college comes, football
games, and all of that." He also expressed a concern regarding a bad
intersection located near the proposed licensed premises. (N.T.
03/18/2014 at 92).
41. Mr. Helm also expressed a concern, albeit mistaken, that the
Civic Club and two (2) churches are located within five hundred (500)
feet of the proposed licensed premises. (N.T. 03/18/2014 at 84-85).
18
42. Mr. Helm's petition to intervene was postmarked September 7,
2012 and he provided no explanation at the instant hearing as to why
it was not filed timely within thirty (30) days of the July 30, 2012
posting of Applicant's Notice of Application. (N.T. 03/18/2014 at 89).
43. Mr. Helm did not attend the July 2012 Shippensburg Borough
Council public hearing regarding the proposed licensed premises.
(N.T. 03/18/2014 at 91).
44. The following petitioners did not attend the instant hearing:
Alvin Oberhultzer, Sharon Hershey, Louis Deardorff, and Luke and Lois
Martin. (N.T. 03/18/2014 at 93, 100).
45. John Mummau resides at 7001 Molly Pitcher Highway, which is
located approximately four (4) miles south of the proposed licensed
premises. Mr. Mummau has lived at this location since 1966 and he
filed a petition to intervene in the instant matter. (N.T. 03/18/2014 at
93-94).
46. Mr. Mummau opposes the proposed licensed premises because
in 2005, his sister-in-law and brother-in-law were killed by a
seventeen (17) -year-old drunk driver in the state of Indiana. (N.T.
03/18/2014 at 94-95).
47. Mr. Mummau testified regarding an incident that involved his
son, who was attending Penn State University at the time of the
19
incident. Mr. Mummau related that his son came home after work and
encountered an unconscious, intoxicated twenty-one (21)-year-old
student in the backyard of a neighboring home. Mr. Mummau's son
and another individual transported this unconscious individual to the
hospital and were told that if they had not acted, the unconscious
individual would have died. (N.T. 03/18/2014 at 95-96).
48. Mr. Mummau has been opposed to drinking all of his life and
he believes there are "too many stores and alcohol places in
Shippensburg." (N.T. 03/18/2014 at 96).
49. Mr. Mummau indicated the proposed licensed premises is
located two (2) blocks from Shippensburg University, which has
approximately six thousand (6,000) students. Mr. Mummau is
concerned that if Applicant's transfer application is approved, there
may be incidents of driving under the influence and public
drunkenness. (N.T. 03/18/2014 at 96-97).
50. Mr. Mummau is generally opposed to the sale of alcohol at the
proposed licensed premises and his opposition is not related to
Applicant or its business. Mr. Mummau indicated that if the proposed
premises is licensed, "it's the last time I will buy gas at any Sheetz
store." (N.T. 03/18/2014 at 98).
51. James Andrews resides at 7009 Molly Pitcher Highway, which
20
is located approximately four (4) miles from the proposed licensed
premises. Mr. Andrews has lived at this location on and off for sixty
(60) years and he filed a petition to intervene in the instant matter.
(N.T. 03/18/2014 at 100-102).
52. Mr. Andrews is opposed to the application because "children"
will have access twenty-four (24) hours a day to the proposed licensed
premises, and will be able to see alcohol being purchased and
consumed. (N.T. 03/18/2014 at 102).
53. Mr. Andrews is concerned that with Shippensburg University
being two (2) blocks from the proposed licensed premises, it would be
"very accessible for anyone to buy alcohol and allow these college
students to consume it." Mr. Andrews is also concerned about "lives
being destroyed by impaired drivers." (N.T. 03/18/2014 at 103).
54. Mr. Andrews is against a convenience store being licensed to
sell alcohol where it can be "accessed by anybody." Mr. Andrews is
opposed to the sale of alcohol at the proposed licensed premises by
any type of entity, but he probably would not have testified against
the application if it was solely a restaurant operation at this location.
(N.T. 03/18/2014 at 103-109).
55. Mr. Andrews was "raised by an alcoholic father" and he is
"totally against alcohol." (N.T. 03/18/2014 at 109).
21
56. Priscilla Marie Smith resides at 9996 McCreary Road, which is
located approximately five (5) miles from the proposed licensed
premises. Ms. Smith has been the Civic Club's president since January
2014 and she has been a member of said organization for seventeen
(17) years. Ms. Smith has chaired committees and has been the vice
president for the Civic Club. Ms. Smith testified at the instant hearing
on behalf of the Civic Club. (N.T. 03/18/2014 at 111-113).
57. The Civic Club is not incorporated, has approximately ninety
(90) members, and has been in existence since 1911. Ms. Smith
indicated the Civic Club is a "women's club," and its purpose is to
educate women and make them aware of community needs. (N.T.
03/18/2014 at 113-114, 116, 119-120).
58. The Civic Club sponsors a community nurse who provides
nursing care to individuals who either do not have the money or
transportation to get medical assistance. This nurse does not charge
for his/her services. The community nurse program was started
around 1911. (N.T. 03/18/2014 at 114-115, 118-120).
59. The Civic Club provides scholarships to "students of the
month." (N.T. 03/18/2014 at 114-115, 119).
60. The Civic Club is a non-profit organization and funding for the
Civic Club comes from dues, and public and private donations. Ms.
22
Smith believed she may receive twenty-five dollars ($25.00) a year as
the Civic Club's president, but she did not think the other officers are
paid for their service. (N.T. 03/18/2014 at 117-118).
61. The Civic Club conducts private tours of its building and during
the summer months it has open houses the second Saturday of every
month. The Civic Club's building houses artifacts, such as a deed
between Edward Shippen and William Penn's sons, old pictures,
antique furniture, and deeds from early settlers. The Civic Club's
building was the courthouse for Cumberland County for one (1) year in
1750, when Cumberland County was formed, and its building is listed
on the National Register of Historic Places. The Civic Club maintains
gardens on the side of its building, which are open to the public. (N.T.
03/18/2014 at 136-138).
62. The Civic Club conducted approximately three (3) or four (4)
private tours during 2013 and the hours for its monthly open houses
during the summer months are between 1:00 p.m. and 4:00 p.m.
(N.T. 03/18/2014 at 151).
63. The Civic Club does not engage in administrative activity at its
building on a daily basis and the nursing care activities do not occur at
its building. (N.T. 03/18/2014 at 152).
64. The Civic Club does not charge a fee for its tours, but people
23
can give donations, which go to the nurse's committee. Tour guides
are volunteers. (N.T. 03/18/2014 at 139).
65. The Civic Club holds an executive committee meeting the first
Wednesday of each month and a general meeting the third Wednesday
of each month. (N.T. 03/18/2014 at 144, 157).
66. The Civic Club filed a protest regarding Applicant's proposed
licensed premises and it is located directly across the street from the
proposed licensed premises. (N.T. 03/18/2014 at 122-123).
67. Ms. Smith had no disagreement with Mr. Lamark's
measurement of two hundred five (205) feet from the Civic Club's
building to the proposed licensed premises. (N.T. 03/18/2014 at 140-
141).
68. Ms. Smith believed the Civic Club meets the definition of a
charitable organization because it is a non-profit organization that
centers on non-profit and philanthropic goals. (N.T. 03/18/2014 at
145-146).
69. The Civic Club is opposed to Applicant's transfer application
because there is already an issue with trash and debris that is
discarded by the current Sheetz customers, and she anticipates this
will get worse if Applicant's transfer application is granted. Ms. Smith
indicated that some of the trash comes from the neighboring
24
McDonald's. Also, the Civic Club is concerned that Applicant's patrons
will utilize the Civic Club's public gardens to "party and leave all their
stuff" and that Applicant's patrons may damage the Civic Club's
building. (N.T. 03/18/2014 at 123, 126, 142, 149).
70. Ms. Smith believes that the granting of a liquor license will
make it too easy for people to purchase alcohol at a business where
gasoline is sold. (N.T. 03/18/2014 at 123-124).
71. Ms. Smith is concerned that because the area where the
proposed licensed premises is already very congested, licensing this
location would increase a lot of problems that are already issues.
(N.T. 03/18/2014 at 125).
72. Ms. Smith is opposed to the licensing of a location where
people go to buy their food because "there are too many people who
will spend money on . . . the alcohol instead of food for their family."
(N.T. 03/18/2014 at 127).
73. Ms. Smith pointed out there is a McDonald's located next to
the proposed licensed premises, which has an enclosed outside
playground. (N.T. 03/18/2014 at 128-130).
74. Ms. Smith indicated that the Civic Club would not oppose a
restaurant selling alcohol, such as Ruby Tuesday's; the Civic Club is
concerned with a convenience store selling alcohol and gasoline. (N.T.
25
03/18/2014 at 131-132, 147).
75. A security officer employed for the proposed licensed premises
would allay some of the Civic Club's concerns. (N.T. 03/18/2014 at
144).
76. If Applicant would not permit patrons to consume beer in any
of its outdoor seating areas or the parking lot, this would change the
Civic Club's objections a "small amount." However, the Civic Club
would still be concerned about "people being able to drive in and get
their gasoline and pick up their six-pack while they're at it." (N.T.
03/18/2014 at 153).
77. Sandra Hummel is the Civic Club's treasurer and she has held
this position for seven (7) years. Ms. Hummel was a member of the
Junior Civic Club in her 20s, became inactive, and subsequently
returned to the Civic Club when she was in her 40s. (N.T. 03/18/2014
at 155-156).
78. The Civic Club's charter is to educate the women of the
community, to offer assistance, and to promote the betterment of the
community. Presently, the Civic Club has five (5) scholarships and two
(2) nurse -related scholarships this year; whereas, normally there is
only one (1) nurse -related scholarship per year. (N.T. 03/18/2014 at
158).
26
79. The Civic Club has informative programs during its monthly
meetings which help educate its members. At these meetings, the
Civic Club has different speakers who talk on a wide variety of topics,
such as identity theft and restoration of documents within the building.
(N.T. 03/18/2014 at 159).
80. The Civic Club's community nurse is paid from the Civic Club's
finances, a grant, a trust that was set up for this specific purpose, the
Episcopal Church, and the United Way. The nurse works between one
hundred (100) and one hundred twenty (120) hours per month. The
nurse visits the homes of patients who have been authorized by a
physician for care; the nursing care provided is free to the patient.
(N.T. 03/18/2014 at 160-161, 163-164).
81. The Civic Club maintains a 501(c)(3) status with the Internal
Revenue Service. (N.T. 03/18/2014 at 162).
82. The Civic Club receives dues of twenty dollars ($20.00) per
year from members and maintains three (3) checkbooks: general fund
account, nurse's account, and maintenance of building account.
(N.T. 03/18/2014 at 163-164).
83. Ms. Hummel agreed with Ms. Smith's testimony regarding the
Civic Club's opposition to Applicants' transfer application. (N.T.
03/18/2014 at 161).
27
84. Ms. Hummel is on the executive committee and attended the
executive committee meeting that was held to discuss the filing of a
protest to Applicant's transfer application. (N.T. 03/18/2014 at 165-
167).
85. The Civic Club does not pay its officers or members a salary.
(N.T. 03/18/2014 at 169-170).
86. Jaye Alleman resides at 324 East Burd Street in Shippensburg
and has lived at this location for twenty-eight (28) years. Mr.
Alleman's residence is located approximately one hundred fifty (150)
feet from the proposed licensed premises and he filed a protest in the
instant matter. (N.T. 03/18/2014 at 171-174).
87. Mr. Alleman's residence is located approximately one and one-
half (11/2) blocks from licensee, Wib's Bar, which is located on North
Queen Street. Mr. Alleman's residence is located between the
proposed licensed premises and Shippensburg University. (N.T.
03/18/2014 at 174-175, 184).
88. Mr. Alleman's property receives a lot of vandalism from college
students and his porch bannister has been vandalized three (3) times.
Mr. Alleman has to clean Applicant's and McDonald's trash from his
lawn in the summer before he can mow, and he is concerned the trash
will increase from Applicant if its transfer is approved. (N.T.
28
03/18/2014 at 175-176).
89. Mr. Alleman was assaulted by a drunk college student on New
Year's Eve in 2004, which resulted in him receiving a broken hip. Mr.
Alleman observed the assailant was coming from the vicinity of Wib's
Bar. Mr. Alleman is afraid that approval of Applicant's transfer
application will "increase the possibilities of that happening" again.
(N.T. 03/18/2014 at 177, 185).
90. Mr. Alleman believes there are enough liquor licensees in the
Borough of Shippensburg and another license is not needed. (N.T.
03/18/2014 at 177).
91. Mr. Alleman declined an offer from Applicant to build him a
fence in 2012, because he "would be required to fix it as often as it's
broken because of the experience with the porch banister. That same
situation would happen. In addition to that, cans could be thrown over
the fence. That wouldn't stop it at all." (N.T. 03/18/2014 at 177,
185).
92. Mr. Alleman attended the Borough Council's meeting in 2012,
regarding Applicant's proposed transfer. (N.T. 03/18/2014 at 185).
93. Based on his observations, Mr. Alleman believes there is a
relationship between the consumption of alcohol and littering. Also,
Mr. Alleman believes that Applicant's patrons would drink to
29
intoxication. (NJ. 03/18/2014 at 178-180).
94. Mr. Alleman has had problems with littering in his yard during
the twenty-eight (28) years he has lived at his current location. The
current Sheetz establishment predates Mr. Alleman moving to his
residence. (N.T. 03/18/2014 at 180-181).
95. There is significant foot traffic on Friday and Saturday nights
on East Martin Avenue, which is the roadway that borders the rear of
Applicant's premises, and Mr. Alleman estimates this foot traffic to be
ninety-five percent (95%) college students. (N.T. 03/18/2014 at 181-
183).
96. Mr. Alleman has had problems with foot traffic coming from
the Sheetz convenience store because the people walk across his yard,
and he thinks this foot traffic may increase with the proposed licensed
premises. (N.T. 03/18/2014 at 188-189).
97. Mr. Alleman finds the littering and noise to be worse on
weekends and he has been awakened between 2:00 am and 3:00
a.m., despite having his windows closed and air conditioner turned on.
Mr. Alleman has called the police different times regarding the noise
coming from foot traffic on East Martin Avenue. (N.T. 03/18/2014 at
183).
98. Mr. Alleman does not have too many problems with noise
30
coming from Sheetz's premises, but he is concerned this may change
because the proposed licensed premises will be located closer to his
residence. (N.T. 03/18/2014 at 183).
99. Mr. Alleman is opposed to the sale and consumption of
alcoholic beverages. He would object to any type of establishment
selling alcoholic beverages at the proposed licensed premises. (N.T.
03/18/2014 at 186).
100. Fred A. Scott is Chief of the Shippensburg Borough Police
Department and he has held that position for almost fourteen (14)
years. Previously, Chief Scott was employed by the Pennsylvania state
Police for twenty-nine (29) years. Chief Scott is familiar with the
current Sheetz establishment, which is within the jurisdiction of the
Shippensburg Borough Police Department. (N.T. 03/18/2014 at 199-
200).
101. The Sheetz premises is popular with Shippensburg University
students because of the availability of food, particularly late-night
food, and being able to purchase gasoline. (N.T. 03/18/2014 at 200-
201).
102. The Shippensburg Borough Police Department is comprised
of nine (9) police officers, include Chief Scott. The police department
is able to provide 24/7 coverage for the Borough. (N.T. 03/18/2014 at
31
213).
103. There are three (3) Shippensburg Borough police officers on
duty on Thursday, Friday, and Saturday nights. There are usually two
(2) police officers on duty the other nights of the week. (N.T.
03/18/2014 at 201).
104. Since July 2012, Shippensburg Borough police officers have
responded to the Sheetz establishment concerning retail theft (ninety-
five percent (95%) of which is committed by intoxicated students),
disturbances, harassment of employees, public intoxication, underage
drinking, and driving under the influence. A lot of the calls the police
receive at night concerning incidents at Applicant's establishment are
alcohol-related. (N.T. 03/18/2014 at 201-203).
105. Chief Scott checked the Borough of Shippensburg's Police
Department's statistics for the years 2011 through 2013 and
specifically checked for incidents occurring at Applicant's location. For
2011, there were:
• thirty-five (35) retail theft arrests in the Borough, thirty (30)
occurred at Applicant's establishment;
• forty-three (43) public drunkenness arrests in the Borough,
eight (8) occurred at Applicant's premises;
• eighty-seven (87) underage drinking arrests in the Borough,
32
fifteen (15) occurred at Applicant's premises;
• thirteen (13) arrests of minors driving under influence of
alcohol in the Borough, two (2) occurred at Applicant's
premises; and
• seventy-eight (78) non -minors driving under the influence of
alcohol arrests in the Borough, fifteen (15) occurred at
Applicant's premises. (N.T. 03/18/2014 at 202-205).
106. The Borough of Shippensburg's Police Department's
statistics for 2012 were:
• twenty-eight (28) retail theft arrests in the Borough, twenty-
four (24) occurred at Applicant's establishment;
• forty-six (46) public drunkenness arrests in the Borough,
eight (8) occurred at Applicant's premises;
• sixty-two (62) underage drinking arrests in the Borough,
fifteen (15) occurred at Applicant's premises;
• six (6) arrests of minors driving under influence of alcohol in
the Borough, one (1) occurred at Applicant's premises; and
• eighty (80) non -minors driving under the influence of alcohol
arrests in the Borough, seventeen (17) occurred at
Applicant's premises. (N.T. 03/18/2014 at 205).
107. The Borough of Shippensburg's Police Department's
33
statistics for 2013 were:
• thirty-seven (37) retail theft arrests in the Borough, twenty-
seven (27) occurred at Applicant's establishment;
• fifty-two (52) public drunkenness arrests in the Borough, two
(2) occurred at Applicant's premises;
• seventy-three (73) underage drinking arrests in the Borough,
nine (9) occurred at Applicant's premises;
• no arrests of minors driving under influence of alcohol
occurred at Applicant's premises; and
• fifty-five (55) non -minors driving under the influence of
alcohol arrests in the Borough, six (6) occurred at Applicant's
premises. (N.T. 03/18/2014 at 205).
108. On Thursday, Friday, and Saturday nights, Chief Scott
routinely has a patrolman stationed at the Sheetz premises and this
"takes away" from the police's response to the rest of the Borough.
The Chief indicated there are no other establishments in the Borough
of Shippensburg which require this type of attention from the police
department. (N.T. 03/18/2014 at 206).
109. Chief Scoot has observed that after 12:00 a.m., the Sheetz
convenience store is primarily patronized by college students. (N.T.
03/18/2014 at 206-207).
34
110. Approximately three (3) years prior to the instant hearing,
Chief Scott asked the local manager of Sheetz convenience store to
contact corporate headquarters and request increased staffing and
security for outside its store. (N.T. 03/18/2014 at 207).
111. One (1) of the biggest concerns of Shippensburg's police
officers is the delay in time at the Sheetz convenience store when
ordering food because while one (1) student may be buying
sandwiches, there may be two (2) friends waiting for the student, and
this waiting period is when incidents occur. (N.T. 03/18/2014 at 208).
112. As of the date of the instant hearing, the Borough of
Shippensburg has approximately nine (9) or ten (10) licensed
establishments, all located in Cumberland County. (N.T. 03/18/2014
at 210).
113. Chief Scott pointed out that Sheetz's employees call the
police for many of the incidents because "when the bars close down
there, everybody goes to Sheetz to eat." Also, he pointed out that
people come to Sheetz's premises intoxicated, Sheetz "doesn't make
them intoxicated." (N.T. 03/18/2014 at 212).
114. Chief Scott believes that Sheetz's current security is
inadequate and it needs to have security employees monitoring inside
and outside its establishment, and having an Act 235 -certified security
35
employee "would help." (N.T. 03/18/2014 at 215-216, 224-225).
115. Chief Scott believes that Sheetz's video surveillance system
has been very beneficial to the police and it has provided video
recordings to the police upon request. Also, many of the retail theft
arrests were based on these recordings and Sheetz's employees are
always cooperative with the police. (N.T. 03/18/2014 at 216-217).
116. At the Shippensburg Borough Council's intermunicipal
transfer hearing held in July 2012 regarding Applicant's transfer
request, Chief Scott expressed his concerns to the Borough Council,
but the Borough Council still approved Applicant's request. The
Borough Council did not give the Chief authorization to appear at the
instant hearing and testify on their behalf. (N.T. 03/18/2014 at 217-
218).
117. Chief Scott acknowledged that Sheetz's convenience store
does not sell alcohol and it has had to deal with the problem of
intoxicated patrons coming from other licensed establishments. The
Chief indicated that he investigates licensed establishments regarding
the over -service of alcohol and service to minors when he receives a
complaint, but most of the time the individuals have been "shut off" by
the establishments and then go to Sheetz's convenience store. (N.T.
03/18/2014 at 219-220).
36
118. Chief Scott expressed a safety concern at Applicant's
proposed licensed premises when a liquor license is added to an
already volatile situation. (N.T. 03/18/2014 at 229-230).
119. Chief Scott acknowledged that beer distributors in the
Borough of Shippensburg sell their products to college students and
the Chief has not asked intoxicated individuals who have been arrested
where they purchased the alcohol because it has not be relevant to the
arrests. (N.T. 03/18/2014 at 231-232).
120. Chief Scott indicated the Shippensburg Police Department
has not had a problem with loitering at the Sheetz convenience store,
other than "Amish kids . . . congregat[ing] at their horse and buggies
out front of the Sheetz and talk[ing]." The police have not had any
issues with alcohol involving the Amish kids. (N.T. 03/18/2014 at
232-233.
121. Chief Scott has observed the scattering of "rubbish" on North
Queen Street and Martin Avenue behind Mr. Alieman's house, which
the Chief characterized as being "like a garbage dump." When asked if
the Chief was able to identify the source of the "rubbish," he testified
that "Sheetz labels their stuff rather nicely. So it's not hard to tell
where it came from." Regarding "rubbish" on Sheetz's premises, the
Chief indicated that Sheetz takes care of its property and he has "no
37
complaints." (N.T. 03/18/2014 at 233-234).
122. Chief Scott has observed security at Sheetz's convenience
store on Friday and Saturday nights. There are usually two (2) people,
but these employees "get swamped just trying to stay on top of the
retail thefts within the store. They don't have time to be outside."
`(N.T. 03/18/2014 at 234-235).
123. John Campbell is the regional director of operations for
Sheetz, Inc. and he has held this position for thirteen (13) years. Mr.
Campbell oversees daily operations of thirteen (13) districts, which
include the eastern half of Pennsylvania, Maryland, "parts of West
Virginia," and "parts of Virginia." There are one hundred fifty-eight
(158) Sheetz stores within these thirteen (13) districts, and Mr.
Campbell oversees and has responsibility for the day-to-day
operations of these stores. (N.T. 03/18/2014 at 239-241).
124. Construction of the new Sheetz facility at 359 East King
Street in Shippensburg commenced approximately a month prior to
the instant hearing and the projected opening of the new premises is
late May 2014. (N.T. 03/18/2014 at 241).
125. The Sheetz store currently operating at 359 East King Street
sells food, drink, health and beauty items, soda packs, sunglasses,
lighters, tobacco, cigarettes, coffee and made-to-order ("MTO") food.
38
There has been a Sheetz store at this location for approximately thirty
(30) years. (N.T. 03/18/2014 at 241-242).
126. The new Sheetz facility will be constructed adjacent to the
existing store on newly acquired property, which is to the left and to
the rear, as you face the present building at the corner of East King
Street and Queen Street. Upon completion of the new Sheetz facility,
the current Sheetz store will be closed. (N.T. 03/18/2014 at 242).
127. There will be two (2) separate businesses operating in the
new Sheetz facility; one (1) business will be a Sheetz convenience
store that will be operated by Sheetz, Inc. and the other business will
be a Sheetz restaurant that will be operated by Applicant. (N.T.
03/18/2014 at 242-243).
128. Sheetz, Inc. will also operate the gas pumps. (N.T.
03/18/2014 at 243).
129. Applicant is a subsidiary of Sheetz, Inc. (N.T. 03/18/2014 at
243).
130. The new Sheetz facility is not owned by Sheetz, Inc. or
Applicant, but Sheetz, Inc. and Applicant will each of have their own
lease for their respective premises. (N.T. 03/18/2014 at 243-244;
Exs. MBDA-7, MBDA-8).
131. The Sheetz convenience store will be under the same roof
39
and adjacent to Applicant's proposed licensed premises. The
convenience store portion of the premises will be five hundred twenty-
six (526) square feet and the convenience store will be responsible for
the gasoline pumps. (N.T. 03/18/2014 at 246-248; Ex. A-1).
132. Applicant's proposed licensed premises will operate under the
trade name of Sheetz Restaurant, the convenience store will operate
under the trade name of Sheetz Convenience Store, and the gasoline
pumps will operate under the trade name of Sheetz. (N.T. 03/18/2014
at 247).
133. The proposed licensed premises4 will cover six thousand five
hundred sixty-seven (6,567) square feet and will have its own
entrance through double doors, patrons will be able to enter the
proposed licensed premises without going into the Sheetz Convenience
Store. The proposed licensed premises will have a dining area with
booths, tables, chairs, and a counter, which will have seating for
thirty-seven (37) patrons. (N.T. 03/18/2014 at 249-252; Ex. A-2).
134. Applicant will provide the following made to order food items
at the proposed licensed premises "24/7:" a complete hamburger line,
including gourmet hamburgers similar to what a Red Robin restaurant
would have; gourmet chicken sandwiches similar to what a Red Robin
40
restaurant would have; subs and sandwiches, both hot and cold;
twelve (12) different types of wraps, as well as burritos and burrito
bowls; different types of french fries and wings; different types of
salads; pizza with many different toppings; and breakfast foods, such
as biscuits, bagels, croissants, oatmeal, fruit, and sandwiches. (N.T.
03/18/2014 at 253-256, 262-264).
135. Mr. Campbell believes that Applicant's coffee line, Sheetz
Brothers Coffee, is competitive with Starbucks. (N.T. 03/18/2014 at
266-267).
136. Mr. Campbell opined that Applicant's food would mirror eight
(8) to ten (10) different competing restaurants, such as Pizza Hut,
Chipotle, and Starbucks. Mr. Campbell pointed out that Applicant's
food will be a higher -grade product than McDonald's. (N.T.
03/18/2014 at 257).
137. Food will be ordered at the proposed licensed premises at
four (4) "order points," via MTO screens. (N.T. 03/18/2014 at 258-
259; Ex. A-2).
138. Mr. Campbell believed it would take a customer
approximately ten (10) minutes to review Applicant's menu, because
Applicant has such a "broad menu." Applicant will have three (3)
4 The proposed licensed premises is outlined in yellow on Exhibit A-2.
41
registers located in the proposed licensed premises for patrons to pay
for food items and it will have two (2) areas within the proposed
licensed premises for patrons to pick-up their food purchases. (N.T.
03/18/2014 at 259-261; Ex. A-2).
139. Applicant will have a dining area that will accommodate
thirty-seven (37) patrons. Purchased food may be consumed at the
proposed licensed premises or removed from the premises. (N.T. 262-
264; Ex. A-2).
140. Applicant's kitchen area is located directly behind the order
points and contains sophisticated equipment that will be used for food
preparation. Mr. Campbell pointed out that you would have to "put a
couple of different restaurants together to get all of our equipment"
used in Applicant's kitchen. (N.T. 03/18/2014 at 264-269 Ex. A-2).
141. The proposed licensed premises will have a large walk-in
freezer and cooler. According to Mr. Campbell, the coolers will be used
"solely to support Applicant's kitchen." Applicant will have food
products delivered three (3) times a week to its proposed licensed
premises and it will also receive delivery of bakery items daily. (N.T.
03/18/2014 at 269-270; Ex. A-2).
142. There will be sixty-six (66) linear square feet of beverages
called the "Big Six" at the proposed licensed premises. This area will
42
have thirty-seven (37) flavors of milkshakes, forty-four (44) different
fountainheads, eight (8) head frozen carbonated beverage unit,
brewed tea units; and iced coffee units. (N.T. 03/18/2014 at 271-
273; Ex. A-2).
143. The proposed licensed premises will have coolers that
customers can access containing single -size bottled non-alcoholic
beverages, such as iced tea, water, and soda. (N.T. 03/18/2014 at
273-275; Ex. A-2).
144. Applicant will sell single -serve packages of snack foods and it
will not sell large bags of snack foods at the proposed licensed
premises. Applicant will also sell candy, gum, and similar items at the
proposed licensed premises. (N.T. 03/18/2014 at 275-276; Ex. A-2).
145. Applicant will sell single -serving bakery items, such as
doughnuts, cookies, and muffins in an bakery section at the proposed
licensed premises. (N.T. 03/18/2014 at 276-277; Ex. A-2).
146. The proposed licensed premises will have approximately
eight (8) flavors of frozen yogurt, two (2) flavors of ice cream, and a
number of different toppings. (N.T. 03/18/2014 at 277-278; Ex. A-2).
147. Applicant will have a twelve (12) -foot "RTE" case that will
have prepared sandwiches, which will be shipped to the proposed
licensed premises daily. Applicant will also provide single -serving
43
prepackages of fresh fruit and cheese. (N.T. 03/18/2014 at 278-279;
Ex. A-2).
148. Applicant will sell tobacco products, which willl be located
behind each of the three (3) registers at the proposed licensed
premises. (N.T. 03/18/2014 at 279; Ex. A-2).
149. Butane lighters will not be sold at the proposed licensed
premises, but will be sold in the Sheetz Convenience Store. (N.T.
03/18/2014 at 365-366).
150. Applicant's patrons will not be able to purchase items located
in the proposed licensed premises at the unlicensed Sheetz
Convenience Store, and the items located in the convenience store
cannot be purchase at the proposed licensed premises. Signage will
be posted on both sides of the four (4) -foot interior connection
between the proposed licensed premises and the unlicensed
convenience store, prohibiting merchandise from being taken from the
proposed licensed premises to the convenience store, and vice -versa.
Applicant's employees and management will be trained to monitor this
situation. (N.T. 03/18/2014 at 279-280, 300-301).
151. Applicant will not sell convenience store items in the
proposed licensed restaurant, other than tobacco products.
Health/beauty products, automotive supplies, cleaning supplies, pet
44
food, office supplies, two (2) liter bottles of soft drinks, and food
packed in larger than single -serving sizes will not be sold in the
proposed licensed restaurant. (N.T. 03/18/2014 at 280-282).
152. Tobacco products will be the only items that will be sold at
both the Sheetz Convenience Store and the proposed licensed
premises. (N.T. 03/18/2014 at 300).
153. Mr. Campbell indicated that if a customer of the proposed
licensed premises wanted to buy a large bag of potato chips and a six
(6) -pack of beer, he/she would be required to complete two (2)
separate transactions, purchase the large bag of potato chips on the
convenience store side and purchase the beer at the proposed licensed
premises. A patron could bring a completed purchase of the potato
chips from the convenience store into the proposed licensed premises
or a purchased six (6) -pack of beer into the convenience store, but
they would not be permitted to take merchandise from the
convenience store section to the proposed licensed premises, or vice
versa, without purchasing the product in the appropriate area first.
Mr. Campbell noted that employees will enforce this rule by checking
receipts and ensuring that items purchased are bagged. (N.T.
03/18/2014 at 364-365).
154. Applicant will sell only beer at the proposed licensed
45
288; Ex. A-2).
158. Applicant will have signage posted on the exterior of the
proposed licensed premises to identify its establishment as "Sheetz
Restaurant." (N.T. 03/18/2014 at 289-290).
159. Applicant will have as many as eight (8) employees working
in the kitchen area, with approximately three (3) other employees
working outside the kitchen area. The proposed licensed premises will
have a separate manager who will devote full time and attention to
Applicant's operation. Applicant will keep records of the food sales,
and non-alcoholic and alcoholic beverages. (N.T. 03/18/2014 at 290).
• 160. Applicant will not have any exterior licensed areas. (N.T.
03/18/2014 at 290-291).
161. The proposed licensed premises will be well lit. Applicant will
provide easy listening music and it will have approximately two (2)
televisions. It will not have speakers on the exterior of the building.
Applicant will not have any video games, jukebox, pool tables, or live
entertainment. (N.T. 03/18/2014 at 291-292).
162. The unlicensed Sheetz Convenience Store will be located
adjacent to Applicant's premises and it has approximately five hundred
fifty (550) square foot. The Sheetz Convenience Store has its own
lease and it will have a separate exterior entrance; patrons will be able
47
to enter the convenience store without entering the proposed licensed
premises. (N.T. 03/18/2014 at 292-293; Ex. A-2),
163. The Sheetz Convenience Store will sell take-home food items
that you would not consume in one (1) sitting, such as loaves of
bread, gallons of milk, packages of cheese and bologna, cases of soda,
large bags of chips, and large containers of orange juice. The Sheetz
Convenience Store will also sell health and beauty items. The Sheetz
Convenience Store will have one (1) cash register where items sold at
the convenience store will be purchased. (N.T. 03/18/2014 at 293-
294; Ex. A-2).
164. The Sheetz Convenience Store will not sell motor oil
antifreeze, or other automotive supplies. Mr. Campbell does not
believe there will be overflow stocking of convenience store items on
the proposed licensed premises because deliveries will be received
three (3) times a week and seven (7) days a week on the "SPC truck,"
and the remaining vendors service their products on the shelves
themselves. (N.T. 03/18/2014 at 362-363).
165. The Sheetz Convenience Store will be separated from the
proposed licensed premises by an approximately eight (8)-foot high
wall, which will have a four (4)-foot opening between a vestibule area
and the convenience store. There is also a sliding door or retractable
48
gate interior opening that will be used by employees only, this opening
will be at least three (3) feet wide and forty-eight (48) inches high.
(N.T. 03/18/2014 at 295-2961 298-299; Ex. A-2).
166. Mr. Campbell believes that part of the vestibule area would
be part of Applicant's leased premises, but this area will not be
licensed. Patrons would be able to walk from the licensed premises
through the vestibule into the Sheetz Convenience Store, and vice -
versa. (N.T. 03/18/2014 at 296-297; Ex. A-2).
167. The Sheetz Convenience Store will have "Sheetz Convenience
Store" signage posted on the exterior and the convenience store will
be open "24/7." The Sheetz Convenience Store will have a shift
supervisor who will not have any duties or responsibilities with regard
to the proposed licensed premises. (N.T. 03/18/2014 at 299-300).
168. All of Applicant's employees will have Responsible Alcohol
Management Program ("RAMP") training and Applicant will also be
RAMP -certified. All new employees hired by Applicant will be required
to become RAMP -certified. (N.T. 03/18/2014 at 301-302).
169. Applicant's employees who are eighteen (18) or older will
have to undergo TIPS training. (N.T. 03/18/2014 at 303).
170. Applicant's carding policy is to card every person who
purchases beer at the proposed licensed premises. Applicant will
49
accept the following forms of identification: a valid state issued driver's
license, a valid state issued non -driver's license photo identification, a
military issued photo identification, and passport photo identification.
(N.T. 03/18/2014 at 303-304).
171. The procedure Applicant's employees will follow when a
patron purchases beer is as follows: inspect for any alteration;
compare the information on the identification with the patron's
physical characteristics; ask the patron questions, such as whether the
patron is twenty-one (21) years of age or what his/her address is; and
scan the patron's identification with an identification scanner. If any of
the above checks result in a problem, the sale to the patron is refused.
(N.T. 03/18/2014 at 304-306).
172. Applicant's employees will be trained concerning third party
sales (somebody buying beer for someone else) through the RAMP
training and Applicant's tobacco training. For example, if two (2)
people come in seeking to purchase beer, both individuals will be
carded; if both individuals cannot produce identification, the sale
would be refused. Another example would be when an employee sees
a group of people "hanging out" outside the establishment, an alcohol
sale would be refused to one (1) of the members of the group, unless
all the group members produce valid identification. (N.T. 03/18/2014
50
at 307-308).
173. Applicant will have a zero tolerance policy regarding selling
alcohol to minors, visibly intoxicated patrons, and an amount for take-
out in excess of one hundred ninety-two (192) fluid ounces.
Employees who violate this policy will have their employment
terminated on the first violation. (N.T. 03/18/2014 at 308, 323-324).
174. There will be a total of sixty-four (64) surveillance cameras
located inside and outside the building where the proposed licensed
premises will be located. This system includes a digital video record
("DVR") and Mr. Campbell opined that this video system is one (1) of
the best in the industry. (N.T. 03/18/2014 at 308-309).
175. Mr. Campbell did not know the breakdown of the number of
cameras located inside as compared to outside the premises, but he
indicated that "pretty much every inch of the inside and outside will be
covered." The DVR system writes over itself at ninety (90) days,
unless particular footage is tagged. (N.T. 03/18/2014 at 359-360).
176. The surveillance cameras will be operational "24/7" and will
be monitored in real time at the Security Operations Center ("SOC"),
which is located at headquarters in Altoona, Pennsylvania. Mr.
Campbell oversees the SOC, which has a bank of monitors covering
every camera at every store location. (N.T. 03/18/2014 at 311-312).
51
177. The SOC also performs "[V]oice downs at every location" to
check on employees and any time there is a problem, the employee
has a pendant which they can press. Also, there is a pendant located
at each register that can be pressed in the event of a problem. (N.T.
03/18/2014 at 311-312).
178. Someone at SOC headquarters can zoom in on a camera and
then talk to an employee, inquiring as to whether the employee needs
assistance. Signage concerning this extensive video surveillance will
be posted at the "entrances of the location." Video recordings from
the cameras are stored at SOC headquarters and when an incident
occurs at a location, the store has the ability to tag the surveillance
system and save the recording, which is permanently saved until it is
deleted. (N.T. 03/18/2014 at 312-313).
179. The Sheetz Convenience Store and vestibule area will have
surveillance cameras. (N.T. 03/18/2014 at 310).
180. The surveillance cameras will cover the exterior of the
building, including the dumpsters and parking stalls, as well as each
entrance with a telescopic lens. There will also be video surveillance
inside the proposed licensed premises, with cameras focused on the
patrons' seating area, walk-in cooler and its entrance, and three (3)
cash registers. Applicant will cooperate with law enforcement by
52
providing copies of its surveillance recordings. (N.T. 03/18/2014 at
309-310).
181. When a patron is refused an alcohol sale, Applicant's policy is
to place the transaction is placed in a log with the reason for the
refusal and a description of the patron. Also, a picture of the patron is
printed from the DVR system and kept on file. (N.T. 03/18/2014 at
310).
182. At the time of the hearing, at the current Sheetz location,
two (2) security employees work from Thursday, Friday, and Saturday
from 8:00 p.m. until 4:00 a.m. When the new Sheetz facility opens,
Applicant is planning on having security working at all hours that beer
is sold, which would be Monday through Saturday from 7:00 a.m. to
2:00 a.m. and Sunday from 9:00 a.m. to 2:00 a.m. Mr. Campbell
indicated that Applicant will "probably" extend the 2:00 a.m. time to
4:00 a.m. (N.T. 03/18/2014 at 314).
183. The two (2) security employees will be working with a
minimum of two (2) employees from the loss investigation team
("LIT") department. The LIT employees have undergone RAMP and
TIPS training and would be on-site working with security advising them
on what to do, what to look for, and how to intervene. (N.T.
03/18/2014 at 314-315).
53
184. Mr. Campbell was unaware as to how many LIT personnel
will be on-site on a permanent basis, but he indicated in the beginning
there could be as many as four (4) working. (N.T. 03/18/2014 at 346-
347).
185. The security employees will be in uniform and will be
required to monitor the inside and outside premises. Armed security
guards are not employed at any Sheetz stores. (N.T. 03/18/2014 at
315-316, 349).
186. The security employees are being hired for a deterrent and
for customer safety, not to specifically monitor for retail theft.
Security employees will be independent contractors and Applicant will
contract with a number of different companies. Mr. Campbell did not
know the names of the companies that currently provide the security
employees from the Shippensburg Sheetz store. (N.T. 03/18/2014 at
347-348).
187. Mr. Campbell is going to have the manager at the current
Shippensburg Sheetz store, Kathy Soloman, follow-up with Chief Scott
and the security companies to determine the security employees at the
current Shippensburg Sheetz store who are "good." (N.T. 03/18/2014
at 348-349).
188. Employees are to advise the manager if security employees
54
are not performing their job. The LIT employees supervise security
personnel and perform audits at the sites when security are working.
(N.T. 03/18/2014 at 349-350).
189. Mr. Campbell believes the LIT personnel will probably start
working after the security employees start working, so they can work
during the early morning hours, after the Board-approved manager
has left. (N.T. 03/18/2014 at 350).
190. The security employees are not to physically restrain anyone,
but to intervene and prevent incidents from occurring. Security can
call the police, request that one (1) of the employees call the police, or
have one (1) of the clerks push the safety pendant to contact SOC
headquarters in Altoona. SOC has a particular camera view and the
phone numbers of every local police department for every store and
SOC can quickly call the police. (N.T. 03/19/2014 at 379-380).
191. When an employee depresses his/her pendant to alert SOC,
SOC will be notified of the store number and where the emergency is.
(N.T. 03/19/2014 at 405-407).
192. The proposed licensed premises will have a bank of DVRs
with each DVR accommodating sixteen (16) cameras and the
convenience store area would have a separate DVR system with
multiple cameras. The employees' pendants are tied to the DVR
55
systems. (N.T. 03/19/2014 at 407-408).
193. Mr. Campbell acknowledged that when a pendant button is
pressed by an employee, SOC could review all the cameras, but he did
not know if they would do so. Mr. Campbell is not aware of a
procedure with regard to a disturbance and the viewing of the
surveillance cameras at the SOC location. (N.T. 03/19/2014 at 412-
413).
194. Applicant's patrons will be permitted to consume beer only in
the interior seating area of the proposed licensed premises. Patrons
will not be permitted to take open containers of beer outside the
proposed licensed premises and Applicant's employees will be trained
to prevent this from occurring. (N.T. 03/18/2014 at 316-317).
195. When a patron takes alcoholic beverages into the proposed
licensed premises' seating area, Applicant's policy will be to log the
patron entering the seating area and check the area every fifteen (15)
minutes to monitor the patron's consumption. (N.T. 03/18/2014 at
317-318).
196. During the period from 10:00 p.m. to 2:00 a.m., the seating
area would be monitored by either an assistant, shift supervisor, or
another employee. Someone would be designated to inspect that area
every twenty (20) minutes and keep a log of same, and this would
56
require a walk-through and contact with the patrons. The seating area
could be monitored via video by the SOC in Altoona, as well as the
store's monitor. To the extent that SOC observes a disturbance in the
seating area, it would alert the supervisor via a call to the store. (N.T.
03/19/2014 at 514-516).
197. The maximum amount of malt or brewed beverages that a
patron will be permitted to purchase for take-out in a single sale is one
hundred ninety-two (192) fluid ounces. A patron wanting to purchase
additional quantities would have to take the initial purchase to his/her
vehicle and come back later to purchase additional malt or brewed
beverages. A patron who leaves Applicant's establishment after a
purchase would have his/her identification scanned again for additional
purchases. (N.T. 03/18/2014 at 318-320).
198. Mr. Campbell did not disagree with the Licensing's analyst
testimony that ninety-five percent (95%) of Applicant's beer sales will
be for takeout. (N.T. 03/19/2014 at 458-459)
199. For situations where an intoxicated individual attempts to
purchase beer at the proposed licensed premises, Applicant's
employees will refuse service to this individual, and it will document
the incident in its log book. Applicant will attempt to arrange
transportation for the intoxicated person and will offer a free
57
doughnut, french fries, or fountain drink to the person. If necessary,
SOC would notify the police to respond and if the intoxicated individual
was to leave in a vehicle, an effort would be made to obtain the license
number so it could be provided to the police. (N.T. 03/18/2014 at
320-322).
200. Applicant's policy for a patron who purchases beer at
proposed licensed premises and then attempts to drink said beer in
the parking lot, security would advise the patron that consumption has
to occur in dining area of the proposed licensed premises. If the
patron refuses to cooperate, local police would be notified. (N.T.
03/18/2014 at 322-323).
201. Minors will be permitted to purchase food and non-alcoholic
beverages at the proposed licensed premises because Applicant's sales
of food and non-alcoholic beverages are expected to be much greater
than fifty percent (50%) of Applicant's total sales. Mr. Campbell is
aware that minors cannot sit at a table where alcohol is being
consumed unless the minors are accompanied by a parent, legal
guardian, or are under proper supervision. (N.T. 03/18/2014 at 326-
328).
202. Applicant has had a licensed establishment located in
Altoona, Pennsylvania ("Altoona Licensee") since 2007, and the
58
Altoona Licensee has an interior connection with a convenience store.
The Altoona Licensee had had over one-half million (500,000) beer
sales and it utilizes the same RAMP server policies and procedures that
Applicant will use at the proposed licensed premises. (N.T.
03/18/2014 at 328-330).
203. The Altoona Licensee has received two (2) citations, sales to
a minor and failure to require its manager to obtain RAMP certification
within the required time. The sales to the minor incident occurred
shortly after the Altoona Licensee opened and the employee who sold
the beer to the minor had his employment terminated. (N.T.
03/18/2014 at 330-332).
204, Mr. Campbell testified at the Shippensburg Borough Council
intermunicipal transfer hearing in July 2012 regarding Applicant's
transfer application. He provided much of the same testimony as he
did at the instant hearing. (N.T. 03/18/2014 at 332-333).
205. Sheetz, Inc. will operate five (5) gas pumps, and the area
containing the gas pumps will be on the lease between the owner of
the property and Sheetz, Inc. (N.T. 03/18/2014 at 333-334; Ex. A-1).
206. The distance between the nearest point of the proposed
licensed establishment and the gas pumps is eighty (80) feet.
Between the proposed licensed premises and the gas pumps, there will
59
be a sidewalk, ballards, parking stalls, a macadam drive area, and a
speed bump. Also, there will be a steel fence approximately four (4)
feet high between the parking lot and the outside tables. (N.T.
03/18/2014 at 334-336, 361-362).
207. Sheetz, Inc. will not have a kerosene pump on the property
and Mr. Campbell believed that an oversight caused the site plan to
show a kerosene pump be located approximately forty-five (45) feet
from the proposed licensed premises. (N.T. 03/18/2014 at 336-337;
Ex. A-1).
208. Sheetz, Inc. will sell gas "24/7" and gas customers can only
pay at one (1) of the five (5) gas pumps. Customers will not be able
to pay with cash for their gas purchases, only credit and debit cards
will be accepted at the gas pumps. Customers will not be able to pay
for gas at the Sheetz Convenience Store or the proposed licensed
premises. (N.T. 03/18/2014 at 337, 340-341).
209. Propane will not be sold on the unlicensed or proposed
licensed premises. (N.T. 03/18/2014 at 337-338).
210. An employee working in the Sheetz Convenience Store will
observe and supervise the gas pumps. This employee will have the
ability to shut down the gas pumps during an emergency via a shut-off
switch located near the cash register in the convenience store. This
60
employee would not have the ability to turn the pumps back on, but
would instead call a technician to deal with the issue. (N.T.
03/18/2014 at 338-339).
211. Applicant's employees, including the Board -approved
manager, will not have any duties or responsibilities in regard to the
gas pumps. (N.T. 03/18/2014 at 339).
212. Mr. Campbell acknowledged that Applicant's proposed
licensed premises is located a couple blocks from Shippensburg
University, but he indicated this location was chosen because the
existing Sheetz store "was targeted to be rebuilt" and it is much easier
to transfer a liquor license into a newly constructed store. The close
proximity of college students was not factored in Applicant's decision.
(N.T. 03/18/2014 at 342-344).
213. Applicant is requesting a Sunday sales permit and an
extended hours food permit for the proposed licensed premises. (N.T.
03/18/2014 at 344; Ex. B-1).
214. An employee manning the SPC or fountain area would also
be a customer greeter and would be in charge of monitoring the
proposed licensed premises' dining area. If this employee is
unavailable to monitor the dining area, either the manager or one (1)
of the cashiers "would potentially be required" to monitor the dining
61
area. (N.T. 03/18/2014 at 353-354).
215. The only customer entrance to the proposed licensed
premises will be via the vestibule area. (N.T. 03/18/2014 at 355).
216. Applicant's management will observe the video monitors
inside the proposed licensed premises real time, which would permit
management to surveil the exterior seating area concerning the
presence of individuals consuming alcoholic beverages. Applicant will
have a manager, two (2) assistants, and approximately eight (8) shift
supervisors. (N.T. 03/18/2014 at 356).
217. Mr. Campbell plans on having someone follow-up with the
Borough of Shippensburg concerning more frequent emptying of the
Borough's trash can located in the vicinity of the Civic Club. (N.T.
03/18/2014 at 357).
218. There will be an emergency door located on the right wall of
the proposed licensed premises, which will be locked from the outside
and an alarm will sound if this door is opened. Video cameras will be
pointed focused on this door, both inside and outside. (N.T.
03/18/2014 at 369-371; Ex. A-2).
219. Mr. Campbell would refer to the Sheetz Convenience Store,
Sheetz Restaurant (the proposed licensed premises), and Sheetz (gas
pump area) as three (3) separate businesses located on a parcel of
62
land in Shippensburg. Mr. Campbell indicated that Sheetz would like
to have a one-stop shopping at each one (1) of the three (3) individual
locations, but he did not believe it was doable to have one-stop
shopping at all three (3) locations. (N.T. 03/19/2014 at 394-396).
220. The Sheetz logo will be prevalent at the Sheetz Convenience
Store, proposed licensed premises, and gas pump area. There will be
different branding inside the proposed licensed premises, such as
"Sheetz MTO/To-Go" and "Sheetz Brothers Coffee." (N.T. 03/19/2014
at 397-398).
221. Mr. Campbell does not know if the Shippensburg Sheetz
location will have an exterior sign that advertises the Sheetz
Convenience Store, proposed licensed premises, and Sheetz Gas,
similar to what is done at the location for the Altoona Licensee. (N.T.
03/19/2014 at 399-400).
222. Mr. Campbell indicated that it is not unusual for Sheetz to
advertise food that it sells inside its building on the gas pumps, but the
Shippensburg Sheetz location does not plan on advertising food, beer,
or cigarettes that will be sold at the proposed licensed premises on the
fuel pumps. (N.T. 03/19/2014 at 402-403).
223. Mr. Campbell provided an estimated cost to Shippensburg
Borough Council at the time of Applicant's intermunicipal transfer
63
hearing, representing the cost of the rebuild at the subject site,
including the cost of the building and the fuel pumps. (N.T.
03/19/2014 at 403-405).
224. The proposed licensed premises will not display warm beer
because it does not have sufficient extra square footage to allow for
this. The Altoona Licensee displays warm beer because it has a much
larger facility, as compared to the proposed licensed premises. (N.T.
03/19/2014 at 413, 417-418).
225. The proposed licensed premises will have more food items
than the Altoona Licensee. Also, the proposed licensed premises will
have a walk-in cooler for beer, which the Altoona Licensee does not
have. Lastly, the Altoona location allows customers to pay at the
pump with cash, via a cash acceptor, and credit cards, but the
Shippensburg location will not allow customers to pay with cash at the
gas pumps. (N.T. 03/19/2014 at 418- 420).
226. At the location of the Altoona Licensee, there is a speed
bump separating the pumps from the licensed premises and the
Altoona location is the only Sheetz location where there is a speed
bump between the fuel pumps and the building. This separation is
very similar to what is proposed at the Shippensburg site in regard to
the speed bump, drive -out, parking stalls, and sidewalk (N.T.
64
03/19/2014 at 423-428).
227. The contracted security at the Shippensburg facility will be
paid by Sheetz. Also, the employees at the Sheetz Convenience Store
and proposed licensed premises will be Sheetz employees. An
employee will not work at the convenience store and proposed licensed
premises at the same time. (N.T. 03/19/2014 at 429-432).
228. The employees who will be working in the Sheetz
Convenience Store and the employees working at the proposed
licensed premises will receive the same benefits, including the
overtime policy. (N.T. 03/19/2014 at 435).
229. "ZFORCE" is a computer-based training program that Sheetz
employees receive in the office of the particular Sheetz premises. All
employees have to go through this training which deals with the sale
of restricted items, such as cigarettes, alcohol, fuel sales, and gas
pump monitoring. Mr. Campbell was not aware if all Sheetz
employees are required to go through all aspects of the "ZFORCE"
training. (N.T. 03/19/2014 at 432-435).
230. There is a training department at Sheetz that is responsible
for maintaining training policies and procedures, which are utilized in
the training. Training is done with the ZFORCE modules by managers
at the store location. (N.T. 03/19/2014 at 435-436).
65
231. Mr. Campbell indicated there would be a minimum of one (1)
manager on-site at any given time, but as many as three (3)
managers may be on-site at any given time. A normal Sheetz store
would have one (1) manager, two (2) assistants, and "an average of
four (4) shifts." Some stores have as many as eight (8) shifts, three
(3) assistants, and a manager. (N.T. 03/19/2014 at 436-437).
232. All employees at a Sheetz location report to the same
manager, which includes employees from the proposed licensed
premises and convenience store. (N.T. 03/19/2014 at 437).
233. Sheetz customers can obtain a gas card in exchange for their
email address, which gives them three cents ($.03) off a gallon of gas.
Points are not earned for gas based on store purchases. The process
for obtaining a gas card starts in the store, but must be finished
online. Mr. Campbell did not know whether there will be gas card
brochures displayed at the proposed licensed premises. (N.T.
03/19/2014 at 437-439).
234. Cigarettes would be sold at the Sheetz Convenience Store
and the proposed licensed premises. Mr. Campbell acknowledged that
Sheetz is not concerned where a customer buys cigarettes because it
all goes to the same company. The supplier of cigarettes will come to
the Sheetz location three (3) times a week with cigarettes for both the
66
proposed licensed premises and the Sheetz Convenience Store. Mr.
Campbell did not know whether the proposed licensed premises and
the Sheetz Convenience Store would be invoiced separately for the
cigarettes. (N.T. 03/19/2014 at 440-441).
235. Sheetz has one (1) centralized distribution center in
Pennsylvania and products from that center will stock the store in
Shippensburg. Products will be delivered from the same trucks
regardless of whether they are for the proposed licensed premises or
the convenience store area. (N.T. 03/19/2014 at 441-442).
236. The number of items sold at the Shippensburg Convenience
Store will be scaled back, as compared to other Sheetz convenience
stores, due to space constraints. (N.T. 03/19/2014 at 442-444).
237. If a customer came in to the Shippensburg facility and
attempted to purchase twenty dollars ($20.00) worth of gas with cash,
the customer would be offered a Z -Card (a gift card), which can be
used at any Sheetz location to purchase gas at the pumps or other
items in the stores. The Sheetz stores have been selling Z -Cards for
approximately eight (8) or ten (10) years. (N.T. 03/19/2014 at 444-
447, 478).
238. Employees will not be specifically instructed that if a
customer comes in with cash for the purchase of gas, that they are to
67
suggest the purchase of a Z -Card for use at the gas pump. Z -Cards
will be sold at the proposed licensed premises. (N.T. 03/19/2014 at
488-489).
239. If there is an emergency at the gas pumps, an employee
from the proposed licensed premises could go into the unlicensed
convenience store area and turn off the pumps using the emergency
shut-off switch, if the employee working at the convenience store is
not able to. (N.T. 03/19/2014 at 447-448).
240. The canopy above the fuel pumps at the Shippensburg
Sheetz location will have the Sheetz insignia on it. Mr. Campbell did
not know whether there would be two (2) -way communication
available at the gas pumps at the Shippensburg facility. (N.T.
03/19/2014 at 450-451).
241. Mr. Campbell agreed that under the law fuel cannot be
dispensed within the four (4) walls of the proposed licensed premises.
(N.T. 03/19/2014 at 453).
242. There will be four (4) fuel tanks located at the Shippensburg
Sheetz location, as well as a kerosene tank. (N.T. 03/19/2014 at 454-
455; Ex. MBDA-4).
243. Applicant will not sell individual bottles of beer and cans, just
six (6) -packs and twelve (12) -packs. The six (6) -packs and twelve
68
(12) -packs will not be comprised of loose bottles, just pre-packaged
manufacturers' six (6) -packs and twelve (12) -packs. (N.T.
03/19/2014 at 459-460).
244. Applicant does not intend to compete with beer distributors
but merely to supply its customers with a product. (N.T. 03/19/2014
at 463-465; Ex. MBDA-5).
245. The new Sheetz facility located in Shippensburg will proceed
with construction, regardless of the outcome of Applicant's transfer
application. (N.T. 03/19/2014 at 465).
246. The parties stipulated that as a result of a conditional use
hearing held in Shippensburg Borough on October 4, 2011, the
Borough granted Sheetz, Inc. permission to expand the dimensions of
the structure on the subject premises and to relocate the gas pumps
to a different area within this site. Further, the Borough permitted
outdoor seating on the immediate exterior of the structure. (N.T.
03/19/2014 at 469-470).
247. The new Sheetz facility will have three (3) outdoor seating
areas, but patrons will not be permitted to consume alcoholic
beverages in these areas. (N.T. 03/19/2014 at 472-473).
248. Mr. Campbell was aware that the Board required a speed
bump to be installed at the location of the Altoona Licensee. A speed
69
bump is being installed at the Shippensburg facility to increase the
chances of Applicant's transfer application being approved. (N.T.
03/19/2014 at 479-480).
249. Applicant's minimum age for hiring employees will be sixteen
(16)-year-old. A sixteen (16)-year-old will not be precluded from
operating the cash registers at the proposed licensed premises, but
the minor will not be permitted to sell beer and will have to turn over
the cash register to another employee if a patron wants to purchase
beer. (N.T. 03/19/2014 at 487-488).
250. There will not be a monitor located within the proposed
licensed premises that would depict camera views of the gas pumps,
but there will be a monitor inside the Sheetz Convenience Store. (N.T.
03/19/2014 at 490-493).
251. The wall separating the Sheetz Convenience Store and the
proposed licensed premises will be different than the separation that
was utilized by the Altoona Licensee because the Altoona facility uses
shelving, instead of a wall, to separate the areas. (N.T. 03/19/2014 at
493-494).
252. If an intoxicated individual came to the proposed licensed
premises to purchase food, Mr. Campbell opined that this individual
would be offered something free to eat, but would not be sold food
70
knowing that there would be a wait for the food preparation. (N.T.
03/19/2014 at 511-513).
253. There will be a video monitor in the manager's office. The
utility room where the centrally-located lighting controls would be
located will be in the proposed licensed area. (N.T. 03/19/2014 at
517-518).
254. The existing Shippensburg Sheetz building will be completely
demolished upon completion of the new Sheetz facility. (N.T.
03/19/2014 at 529-530).
255. John Kachur has been real estate counsel for Sheetz, Inc. for
approximately fourteen (14) years. Mr. Kachur confirmed that the
Sheetz building that presently exists at the Shippensburg location will
be replaced by a new larger building. (N.T. 03/19/2014 at 530-531).
256. Both Sheetz, Inc. and its wholly owned subsidiary, Applicant,
have the right to use the Sheetz name. (N.T. 03/18/2014 at 532-
534).
257. Applicant operates other properties for Sheetz that hold
liquor licenses, primarily in Ohio and one (1) in Pennsylvania. (N.T.
03/18/2014 at 536).
258. C.S.P. Investments, Inc. is related to Sheetz, Inc., but
Sheetz, Inc. owns no stock in C.S.P. Investments, unlike Sheetz, Inc.'s
71
complete ownership of Applicant. The officers and directors of C.S.P.
Investments, Inc. are all Sheetz employees. (N.T. 03/19/2014 at 534-
535; Ex. MBDA-1).
259. In order to have an interest in C.S.P. Investments, Inc., one
(1) would have to be employed by Sheetz, Inc. and hold a director or
higher position, and the shares must be purchased. (N.T. 03/19/2014
at 535).
260. C.S.P. Investments, Inc. purchases various properties which
it then only leases back to Sheetz, Inc.; it is essentially a holding
company. (N.T. 03/19/2014 at 536).
261. In March 2012, C.S.P. Investments, Inc. purchased the tract
adjacent to the present Sheetz facility and one (1) week later it
purchased the land where the current Sheetz is located from Sheetz,
Inc. C.S.P. Investments, Inc. created a two (2) -unit retail
condominium ("Unit 1" and "Unit 2") and a common areas, pursuant to
a Declaration of Condominium of Shippensburg King & Queen Retail
Condominium dated November 29, 2012 ("Declaration of
Condominium"). (N.T. 03/19/2014 at 532-533, 536-537, 546; Ex. A-
3).
'The common area is colored green on Exhibit A-4.
72
262. Unit 1 and Unit 2 are both owned by C.S.P. Investments, Inc.
Applicant is leasing Unit 16 from C.S.P. Investments, Inc., which will
be used for the proposed licensed premises and Unit l's street address
will be 345 East King Street. (N.T. 03/19/2014 at 538-540; Exs. A-
31 A-4, MBDA-7),
263. Sheetz, Inc. is leasing Unit 27 from C.S.P. Investments, Inc.
and Unit 2's street address is 359 East King Street. Unit 2's leased
area includes the convenience store, gas pumps, and underground gas
tanks. (N.T. 03/19/2014 at 540-542, 558-559; Exs. A-3, A-4, MBDA-
8).
264, Unit 1 and Unit 2 each have their own real estate tax
numbers. The tax parcel identifications were not assigned to Unit 1
and Unit 2 until November 2013. The new address would not have
been assigned until November or December 2013. The application,
which was filed July 30, 2012, lists an address for the entire property
of 359 East King Street. Applicant's attorney indicated that it is not
uncommon for an address to change for new construction and that
Applicant will have do an address change. (N.T. 03/19/2014 at 542-
5431 554-557; Ex. B-1).
6 Unit l's leased area is colored red on Exhibit A-4.
7 Unit 2's leased area is colored purple on Exhibit A-4.
73
265. Section 8.1 of the Declaration of Condominium mandates
that Unit 1 shall not be used for automobile fuel sales and Section 8.2
of the Declaration of Condominium mandates that Unit 2 shall not be
used for alcohol sales. Mr. Kachur indicated that both of these
sections are akin to a deed restriction. (N.T. 03/19/2014 at 540, 542;
Ex. A-3).
266. The real estate acquisition by C.S.P. Investments, Inc. and
configuration of the Sheetz facility was completed in anticipation of
building a licensed establishment which complied with the Board's
requirements for the sale of beer. (N.T. 03/19/2014 at 544-545).
267. Unit 1 and Unit 2 would be assessed separately for their
areas. The tax assessment of the common area would be based on
Unit 1 and Unit 2's percentage interest, which is defined in Section 3.1
of the Declaration of Condominium. Applicant would be responsible for
approximately thirty percent (30%) of the taxes for the common area
and Sheetz, Inc. would be responsible for paying approximately
seventy percent (70%) of the taxes for the common area. (N.T.
03/19/2014 at 546-547; Ex. A-3).
268. The kerosene tank at the current Shippensburg Sheetz
facility will be removed upon demolition of that store and a new
kerosene tank will not be installed for the new Shippensburg Sheetz
74
facility. Applicant's attorney pointed out that although Applicant's
original site plan specified kerosene, it has been subsequently
removed from the plan. (N.T. 03/18/2014 at 547-550).
269. The new Shippensburg Sheetz facility being developed is one
and sixty-four hundredths (1.64) acres, as consolidated. (N.T.
03/19/2014 at 550-551).
270. The non-conforming use extension granted by Shippensburg
Borough Council was given to Sheetz, Inc. concerning approvals for
gasoline, outdoor seating, and a convenience store. (N.T. 03/19/2014
at 553).
271. There will not be a physical demarcation on the exterior of
new Sheetz facility to differentiate between Unit 2's area and the
common area. (N.T. 03/19/2014 at 559-560; Ex. A-4).
272. The separation of the subject property into condominium
units was not a subdivision under municipal law or municipal
ordinances, but was a legal subdivision as far as creating separate
estates or interests in land. (N.T. 03/19/2014 at 561).
273. C.S.P. Investments, Inc.'s intention is that no fuel operations
will occur in the common areas of the condominium site. (N.T.
03/19/2014 at 569).
274. The cleaning and maintenance of the common areas will be
75
performed by a condominium association consisting of the two (2)
members, Applicant and Sheetz, Inc. Each unit owner would be
separately assessed based on their percentage interest. The
condominium apportionment of the Shippensburg tract would not have
been done if Applicant was not applying for a liquor license. (N.T.
03/19/2014 at 570-571, 583-589; Ex. A-3).
275. Mr. Kachur believes that Unit 1 and Unit 2 are two (2)
separate properties and two (2) separate locations. (N.T. 03/19/2014
at 572).
276. There are employees or shareholders of Applicant who are
shareholders or officers in C.S.P. Investments, Inc. One (1) can be a
shareholder of C.S.P. Investments without being an officer in
Applicant, as long as that person is an employee. (N.T. 03/19/2014 at
579-580; Ex. A-3).
277. The new Sheetz facility will have five (5) multiple product
dispensers ("MPDs"). A new gas tank may be installed to replace the
kerosene tank which had a five thousand (5,000) gallon capacity.
(N.T. 03/19/2014 at 581-582; Ex. A-1).
278. James Rega has been a licensed private investigator for
approximately three (3) years. Prior to becoming a private
investigator, Mr. Rega was a lieutenant for the Southwest Regional
76
Police Department in Belle Vernon, Pennsylvania and a county
detective for the Washington County District Attorney's Office. (N.T.
03/19/2014 at 592).
279. Mr. Rega was employed by MBDA to conduct a field
observation at the Altoona Licensee's location on Pleasant Valley
Boulevard and Mr. Rega conducted said field observation on November
15, 2013. (N.T. 03/19/2014 at 592-593).
280. During the course of his observations Mr. Rega took
photographs of the Altoona Licensee's premises. (N.T. 03/19/2014 at
593; Ex. MBDA-3).
281. During Mr. Rega's field observation, he did not see anything
at the Altoona Licensee's premises that indicated to him that it was not
an integrated business. The only separation between the fuel pumps
and the building was the presence of a plastic molded speed barrier or
bump that ran "pretty much the length of the fuel aisle." Mr. Rega did
not know the purpose of this speed bump and he had not seen this
before at any other Sheetz location. (N.T. 03/19/2014 at 593-594;
Ex. MBDA-3).
282. There was an elevated outside sign at the Altoona Licensee
which advertised coffee, car wash, drive-thru, dining, carry -out, and
gas prices. (N.T. 03/19/2014 at 595; Ex. MBDA-3).
77
283. Mr. Rega estimated the distance from the curb to the fuel
pumps at the Altoona Licensee's location to be between fifty (50) and
sixty (60) feet and the distance from the building to the gas pumps to
be approximately seventy-five (75) feet. (N.T. 03/19/2014 at 596;
Ex. MBDA-3).
284. Mr. Rega observed a sign on a fuel pump at the Altoona
Licensee's location that read "pay inside." Mr. Rega also observed an
employee during his visit who was wearing a pin with his name and
the Sheetz logo. (N.T. 03/19/2014 at 597-598; Ex. MBDA-3).
285. Mr. Rega observed a banner at the Altoona Licensee's
location that indicated there was a three cents ($.03) discount on gas
with a gas card. (N.T. 03/19/2014 at 598; Ex. MBDA-3).
286. Mr. Rega observed there were some individual cans of beer,
but the bulk of the beer at the Altoona Licensee were twelve (12) -
packs and six (6) -packs. He also observed four (4) pallets of warm
beer displayed on the floor at the Altoona Licensee's premises. (N.T.
03/19/2014 at 600; Ex. MBDA-3).
287. During Mr. Rega's visit to the Altoona Licensee, he ordered a
made-to-order sandwich and his order confirmation had Sheetz store
number 354, which is the number for the Altoona Licensee's store. Mr.
Rega paid for his made-to-order sandwich, a six (6) -pack of Red's
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Apple Ale beer, a Sheetz Z -Card, and STP oil treatment at a cash
register in the licensed area. (N.T. 03/19/2014 at 600-602; Ex.
MBDA-10).
288. As Mr. Rega was purchasing his items at the cash register in
the licensed area, he attempted to purchase ten dollars ($10.00)
worth of gas and was told by the cashier that he could not after the
cashier consulted with another employee. The cashier advised Mr.
Rega that he could purchase a Z -Card and use that at the pump, which
Mr. Rega subsequently did. (N.T. 03/19/2014 at 603-604; Ex. MBDA-
10).
289. The oil treatment that Mr. Rega purchased was located on
the shelf with supplies. (N.T. 03/19/2014 at 616-617).
290. Mr. Rega was asked during his visit at the Altoona Licensee if
he wanted a Sheetz card, which he accepted. On the back of the
Sheetz card, it indicated that the card entitled the holder "to earn
rewards for purchases made at Sheetz and is powered by Pump First,
which allows the approved user to bypass prepayment for gasoline at
the designated Sheetz stores." (N.T. 03/19/2014 at 605-606; Ex.
MBDA-10).
291. Upon further questioning, Mr. Rega did not know what the
term "rewards" really meant that was specified on the back of the
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card. Also, Mr. Rega did not go to the website specified on the back of
his Sheetz card to find out additional information regarding the use of
the card. (N.T. 03/19/2014 at 609, 616; Ex. MBDA-10).
292. Mr. Rega indicated that he was told by an employee during
the visit to Altoona Licensee's establishment that his Sheetz card had
been activated at the time of his November 15, 2013 visit. He did not
use his Sheetz card to obtain a three cents ($.03) discount on gas
during his visit. (N.T. 03/19/2014 at 615-616).
293. Mr. Rega indicated that he walked around at the Altoona
Licensee's establishment for approximately ten (10) minutes with a six
(6) -pack of beer and a sandwich, and he was not "challenged." (N.T.
03/19/2014 at 606-607).
294. Mr. Rega was not aware that the Altoona Licensee and the
Board had entered into a conditional licensing agreement regarding
certain aspects of how the fuel pumps would be operated, and how the
convenience store and restaurant would be operated. (N.T.
03/19/2014 at 609).
295. Mr. Rega acknowledged that prior to visiting the Altoona
Licensee's location he was looking for the sale of liquid fuels and
alcohol at the same place. (N.T. 03/19/2014 at 613).
296. Mr. Rega believed that fuel treatment was also displayed in
80
the Altoona store and he was not able to give a reason why he
purchased the oil treatment instead of the fuel treatment. He did not
know if he would have been able to purchase fuel treatment with his
beer at the cash register in the licensed area. (N.T. 03/19/2014 at
617-618).
297. Mr. Rega estimated the speed bump at the Altoona
Licensee's location to be approximately six (6) inches high and
approximately one (1) foot wide; the speed bump ran the length of the
fuel islands. (N.T. 03/19/2014 at 618-619).
298. Mr. Rega observed during his visit to the Altoona Licensee's
location that between the gas pumps and the building, there was a
sidewalk, metal posts, parking area, and a speed bump. (N.T.
03/19/2014 at 621-623; Ex. MBDA-3).
299. Mr. Rega was asked by one (1) of Altoona Licensee's
employees for his driver's license when he purchased his beer at the
cash register. (N.T. 03/19/2014 at 623-624).
300. Steve Gabler is the owner of Gabler's Beverage Distributor
("Gabiers") in Shippensburg, a licensed beer distributor. Gablers sells
to the general public, bars, taverns, and clubs, and Mr. Gabler
indicated that sales to retail licensees is a very small portion of his
business. (N.T. 03/19/2014 at 626).
81
301. Gablers is located at 29 North Seneca Street in
Shippensburg, which is between four (4) and four and one-half (41/2)
blocks from Applicant's proposed licensed premises. (N.T. 03/19/2014
at 627).
302. Mr. Gabler has owned Gablers for over twenty-eight (28)
years and its licensed premises is between two thousand (2,000) and
two thousand five hundred (2,500) square feet. (N.T. 03/19/2014 at
627).
303. Mr. Gabler works at Gablers full-time and Gablers has five
(5) part-time employees, four (4) of whom are college students at
Shippensburg University. (N.T. 03/19/2014 at 628).
304. Ninety-five percent (95%) of Gablers' sales come from beer.
Gablers sells over one hundred (100) verities of domestic, import, and
craft beers. Gablers also sells cigarettes, chips, pretzels, beef jerky,
soda, water, and similar items. (N.T. 03/19/2014 at 628-629).
305. Gablers' beer is sold by the case, thirty (30)-packs, and
kegs. The cases of beer are prepackaged and Gablers is not allowed
to adulterate or change this packaging in any way. Gablers is not
permitted to sell two (2) different twelve (12)-packs of beer and it
cannot sell a single twelve (12)-pack. (N.T. 03/19/2014 at 629-630).
306. Mr. Gabler described the Shippensburg Sheetz store as being
82
a typical convenience store selling "MTO food, snacks, candy bars,
cigarettes, milk, [and] soda." (N.T. 03/19/2014 at 632).
307. Mr. Gabler believes that if Applicant sells six (6)-packs and
twelve (12)-packs of beer to go, it will harm his business. The bars
and taverns in Shippensburg that sell take-out beer do not offer a
Targe variety and their pricing in not too competitive with beer
distributors. (N.T. 03/19/2014 at 633).
308. Mr. Gabler acknowledged there are many items Gablers is
permitted to sell, pursuant to Board guidelines, but it chooses not to
sell many of those items. Mr. Gabler pointed out that Applicant will be
able to sell a large number of items that Gablers cannot sell. (N.T.
03/19/2014 at 636-637).
309. Mr. Gabler indicated that Gablers cannot compete with a
Sheetz facility that is able to sell gasoline and convenience items
because it does not have the purchasing power. Mr. Gabler pointed
out that Applicant already has a retail liquor license for the Altoona
Licensee and he is only permitted by law to own one (1) distributor
license or any other type of license. Mr. Gabler believes that owning
multiple establishments would allow for better price negotiations.
(N.T. 03/19/2014 at 637-639).
310. Mr. Gabler did not believe that Gablers is permitted to sell
83
prepared foods at his distributorship, such as burrito bowls, breakfast
sandwiches, and made-to-order sandwiches. (N.T. 03/19/2014 at
639- 640).
311. Applicant would be able to purchase beer from Gablers, if it
chose to, but Mr. Gabler indicated that it could also purchase directly
from an importing distributor. Mr. Gabler believed he would not be
able to compete with the prices of an importing distributor because an
import distributor obtains it beer directly from the manufacturer. (N.T.
03/19/2014 at 641-642).
312. Mr. Gabler believed the one-stop shop aspect of the
Shippensburg Sheetz facility makes it very attractive for people to
purchase their gas, food, and beverages, alcohol or non-alcohol, all at
one (1) time as opposed to making two (2) or three (3) stops. (N.T.
03/19/2014 at 642-643).
313. Mr. Gabler's objection to Applicant's transfer application is his
belief that Applicant should not be able to sell gasoline and alcohol
from the same property and he would not have a reason to object to
Applicant's application if the Sheetz facility decided not to have gas
pumps. (N.T. 03/19/2014 at 644-646).
314. Mr. Gabler acknowledged there are a lot of items that the
Sheetz Convenience Store sells that Gablers would also be able to sell,
84
but Gablers made a business decision not to sell them because it does
not have the demand from its customers. (N.T. 03/19/2014 at 647-
649).
315. Mr. Gabler was not aware that he could apply to the Board to
operate a convenience store adjacent to his distributorship with an
interior connection, nor was he aware of any other beer distributors
that have that type of setup. (N.T. 03/19/2014 at 649-650).
316. Gablers' employees are not all RAMP -certified. (N.T.
03/19/2014 at 652).
317. Mr. Gabler believed that the majority of the retail licensed
establishments in the Borough of Shippensburg sell six (6) -packs of
beer -to -go. (N.T. 03/19/2014 at 652-653).
318. Gablers does not place malt or brewed beverages on sale on
its own. However, it will reduce its price if its supplier puts a particular
product on sale, which it then passes along to the customer. (N.T.
03/19/2014 at 656-657).
319. Mr. Gabler acknowledged he is allowed to deliver beer to
consumers, which he did when he first went into business for a couple
of years, but later decided to stop this service because it was not
"worth our while." Gablers does delver to retail licensees. (N.T.
03/19/2014 at 655-658).
85
320. Mr. Gabler has never considered converting his distributor
license to an importing distributor license. (N.T. 03/19/2014 at 658-
659).
321. Mr. Gabler believes the liquid fuel prohibition addressed in
the Liquor Code should be handled by the Legislature and not the
Board or the judiciary because he believes the Board and judiciary's
interpretation is arbitrary. Mr. Gabler does not know what the future
holds for his business; he is at the mercy of "who's interpreting the
laws and what they say." Mr. Gabler is a member of MBDA. (N.T.
03/19/2014 at 659-660).
322. Mr. Gabler opined that unless the law is changed, grocery
stores and convenience stores, whether or not they are selling
gasoline, should not be permitted to sell beer. (N.T. 03/19/2014 at
677-678).
323. Gabiers is open Monday through Saturday from 8:00 a.m.
until 9:00 p.m. Mr. Gabler pointed out that his distributorship could be
open until 11:00 p.m., Monday through Saturday, and on Sunday from
9:00 a.m. until 9:00 p.m. (N.T. 03/19/2014 at 662-663).
324. Mr. Gabler anticipates having a loss of revenue if Applicant's
transfer application is approved because he believed that Gabiers
would lose business based on information he received from a
86
distributor in Gettysburg, whose business is located close to a licensed
Giant grocery store. (N.T. 03/19/2014 at 664-667).
325. Mr. Gabler acknowledged that Gablers must collect six
percent (6%) sales tax on every beer sale it makes and that if a retail
licensee does not have to charge sales tax on its beer sales, the retail
licensee's price would be six percent (6%) lower. (N.T. 03/19/2014 at
671-673).
326. Mr. Gabler further acknowledged he is not aware of any
licensed restaurants in Shippensburg that stack warm beer in the
middle of their premises, have advertisements in publications
comparing their prices to beer distributors, sell gasoline, discourage
their patrons from staying and drinking on the premises, sell ninety-
five percent (95%) of their beer -to -go, or that hold a restaurant liquor
license yet choose not to sell wine or spirits. (N.T. 03/19/2014 at
673-675).
327. Mr. Gabler believes that the proposed licensed premises will
have problems with college students purchasing food and consuming
beer on the premises while they are eating their food, particularly late
in the evening, in view of the proximity of the college campus and
nearby student housing. (N.T. 03/19/2014 at 681).
328. Gablers purchases beer only from importing distributors and
87
it has signed territorial agreements in regard to the territory for
particular products sold by the importing distributors. Gablers is
required to buy beer from the importing distributor who has the
territorial rights or the franchise rights to that product for the
Shippensburg area. Gablers believes it cannot buy directly from the
manufacturer, even if it is a small craft brewery. Gablers buys eighty
percent (80%) of its beer from two (2) importing distributors in
Harrisburg and it receives some slight price variations for quantity
purchases. (N.T. 03/19/2014 at 685-688).
329. Patrick Diehl is the owner and president of PKD, Inc., which
holds a distributor license in Shippensburg Borough and is located
approximately four (4) blocks from the proposed licensed premises.
Mr. Diehl has owned this distributorship for nine (9) years. (N.T.
03/19/2014 at 689-691).
330. PKD, Inc. has five (5) employees, including Mr. Diehl and
ninety percent (90%) of its sales are from beer. PKD, Inc. also sells
miscellaneous items, such as snacks, ice, cups, and tobacco. (N.T.
03/19/2014 at 690-691).
331. Mr. Diehl is opposed to Applicant's transfer application
because Applicant will be located on a parcel that is going to be selling
liquid fuels and alcohol and he believes this is prohibited by the Liquor
88
Code. (N.T. 03/19/2014 at 692).
332. Mr. Diehl, "for the most part," agreed with the testimony of
Mr. Gabler at the instant hearing. (N.T. 03/19/2014 at 692).
333. PKD, Inc. sells a case of Yuengling Lager twelve (12) -ounce
bottles for nineteen dollars and ninety-five cents ($19.95) plus tax,
and Mr. Diehl agreed that this was more than the Altoona Licensee
was charging for two (2) twelve (12) -packs of beer. Mr. Diehl pointed
out that his distributorship cannot sell twelve (12) -packs and it cannot
mix a case with different varieties of beer. Mr. Diehl believes the
proposed licensed premises is going to be a detriment to his business
because it will be clear competition. (N.T. 03/19/2014 at 693-694).
334. Mr. Diehl acknowledged there are many items that he could
sell at his distributorship, but he has chosen to not sell those items.
Also, Mr. Diehl indicated that he does not want to have an interior
connection with a convenience store at his distributorship because he
believes he could not sell these items for "anywhere near the price
that the convenience store does." (N.T. 03/19/2014 at 695).
335. One-half (1/2) of PKD, Inc.'s employees are RAMP -certified.
Mr. Diehl believes the RAMP training is generic and the training that he
provides to his employees is much more beneficial. (N.T. 03/19/2014
at 696).
89
336. Mark Tanczos is president of MBDA and he has held this
position for approximately three (3) years. Mr. Tanczos has been a
member of MBDA since taking over his family distributorship in
Bethlehem in 1988. (N.T. 03/19/2014 at 698-699).
337. MBDA is a trade association for Pennsylvania's beer
distributors. MBDA's purpose is to promote the advancement of the
business of malt beverage distributors; to foster, develop, and
maintain the ethical practice of distributors of malt beverages; and to
furnish information relative to the malt beverage business, with a view
of facilitating the conduct of the business for the distributor members
and to maintain better relations between distributors, manufacturers,
retail licensees, and the public. Membership in MBDA is open to
distributors and import distributors, and it has an annual membership.
(N.T. 03/19/2014 at 699-700).
338. As of June 30, 2013, MBDA had approximately five hundred
seventeen (517) members in Pennsylvania. There are two (2)
members from the Shippensburg area: Gabler's Beverage Distributor,
Inc. and PKD, Inc. (N.T. 03/19/2014 at 700-701).
339. The decision by MBDA to file a petition to intervene was
made at an executive committee meeting and later ratified by MBDA's
Board of Directors. Mr. Tanczos indicated that MBDA is objecting to
90
Applicant's transfer application because it believes the Liquor Code
prohibits beer and gasoline sales at the same location, place, or
property and MBDA believes that the proposed licensed premises and
gasoline pumps are at the same location, place or property. (N.T.
03/19/2014 at 701-702).
340. Mr. Tanczos is aware of the efforts over the years to remove
the liquid fuel prohibition from the Liquor Code, in particular the
"FreeMyBeer.com" website. MBDA opposes these attempts to amend
the Liquor Code because it is a highly regulated and complicated set of
laws creating niche markets and the fact that beer distributors get into
the business with the understanding that alcohol would not be sold at
places where gasoline or liquid fuel is sold; MBDA wants to protect its
niche market of off -premises beer sales. (N.T. 03/19/2014 at 703-
704).
341. Mr. Tanczos' distributorship competes with other distributors,
as well as retail licensees who sell six (6) -packs of beer. His
distributorship does not compete with any licensed business, such as
that proposed by Applicant. (N.T. 03/19/2014 at 704-705).
342. MBDA is also opposed to Applicant's transfer application
because it would allow Applicant to sell a huge array of food from its
proposed licensed establishment and be able to sell beer without sales
91
tax. Also, there would be convenience items and gasoline for sale at
the Sheetz facility. Mr. Tanczos believes this one-stop shopping
provides the ability to attract customers that the average distributor
does not have. (N.T. 03/19/2014 at 705).
343. Also, Mr. Tanczos believes the sale of liquid fuel is a draw for
a business because everyone has to fuel their vehicles but not
everyone has to buy beer. If someone has to stop at a convenience
store and purchase gas, that person has ability to pick up beer and
there is no longer a need for a beer distributor. (N.T. 03/19/2014 at
710).
344. Mr. Tanczos believes that the proposed licensed operation
will be a de facto beer distributorship, due to anticipated take-out beer
sales of ninety-five percent (95%) and a lack of encouragement of
consumption on -premises. Mr. Tanczos also believes with transient
customers who are purchasing gas, it will be an advantage in
competition that will be catastrophic to beer distributors located in the
vicinity of the proposed licensed premises. (N.T. 03/19/2014 at 706).
345. Mr. Tanczos indicated the type and number of products that
a Sheetz convenience store can sell are much larger than what a beer
distributor would be allowed to sell. (N.T. 03/19/2014 at 706-707).
346. Mr. Tanczos pointed out that the niche market of beer
92
distributors is off-premises beer sales and distributors are not grocery
stores or convenience stores. (N.T. 03/19/2014 at 708-709).
347. Mr. Tanczos opined that an average distributor would not
have the assets to invest in its business commensurate with what
Sheetz invests in a single store. (N.T. 03/19/2014 at 710).
348. MBDA's information indicates that between eighty-five
percent (85%) and ninety-five percent (95%) of an average beer
distributor's sales is derived from beer sales. (N.T. 03/19/2014 at
711)
349. Mr. Tanczos has observed chain operations with out-of-state
relationships that have the ability to purchase alcohol to the detriment
of beer distributors and as a result, distributors cannot get that brand
of beer because the Targe corporate chains have "sort of cornered the
market." (N.T. 03/19/2014 at 712).
350. Mr. Tanczos' business formerly held an importing distributor
license until 2013. Mr. Tanczos advised that large retail accounts are
serviced by importing distributors. There are agreements between the
manufacturer and the importing distributor concerning merchandising,
quality control, signage, and sales support of its product. Mr. Tanczos
indicated that a small distributor does not have the resources to
compete with an importing distributor for large retail accounts. (N.T.
93
03/19/2014 at 713-714).
351. A retail licensee pays sales tax when it makes a purchase
from a distributor and/or importing distributor, resulting in the retailer
not charging sales tax on beer purchases by a consumer. A consumer
purchasing beer from a distributor pays sales tax on his/her purchase
to the distributor. Mr. Tanczos is concerned that when a consumer
purchases gas at a convenience store and sees the price of beer is
cheaper at the licensed establishment located next to the convenience
store than at a distributor, the consumer will purchase the beer from
the licensed establishment instead of at a distributor. (N.T.
03/19/2014 at 715-716).
352. MBDA is the only trade association for distributors and
importing distributors in Pennsylvania, which number between one
thousand two hundred (1,200) and one thousand three hundred
(1,300); only five hundred seventeen (517) of these distributors and
importing distributors are members of MBDA. (N.T. 03/19/2014 at
717).
353 Board Advisory Notice No. 9, Fifth Revision, dated April 25,
2012, substantially expanded the items that a distributor can sell. Mr.
Tanczos indicated this was done pursuant to a list of items, that were
not convenience or grocery store items, submitted by MBDA from its
94
members. Some of the expanded items were not on MBDA's list, but
were items that distributors in the past may have requested to sell.
(N.T. 03/19/2014 at 718-720).
354. Mr. Tanczos advised that presently Wegmans, Giant, and
Weis are obtaining beer that his distributorship cannot obtain because
he believes that large corporate chains are able to dictate a market.
He believes the added benefit of the gasoline attraction would make
the situation worse. (N.T. 03/19/2014 at 723-724).
355. There is a beer distributor located across the street from the
Altoona Licensee's operation and Mr. Tanczos does not know if this
distributor is still in business. (N.T. 03/19/2014 at 724).
356. In regard to the presence of a distributor in a strip mall with
a licensed grocery store that has gas pumps, Mr. Tanczos opined that
the distributor does not have any connection to the grocery store
selling the liquid fuels, with the entity itself being the location and
there being "a clear bright line there, where there isn't here." (N.T.
03/19/2014 at 726).
357. Mr. Tanczos indicated that MBDA would not have filed a
petition to intervene in the instant matter if gasoline was not being
sold at the new Sheetz facility. (N.T. 03/19/2014 at 728).
358. As president of MBDA, Mr. Tanczos indicated that he receives
95
calls and communications from non-member distributors. MBDA sends
out a newsletter two (2) times a year to all distributors, which
provides news and a solicitation to join the organization. Mr. Tanczos
indicated that some distributors do not want to pay the membership
dues to MBDA, while other non-members contribute to MBDA's legal
fund. (N.T. 03/19/2014 at 732).
359. Mr. Tanczos indicated that it is becoming more common for
large retailers, such as licensed grocery stores, to bypass distributors
and purchase strictly from importing distributors, skipping the three-
tier system. Particularly, for specialty seasonal beers it is becoming
common practice and there have been instances where "chains" are
getting pricing lower than beer distributors on popular mainstream
beers. (N.T. 03/19/2014 at 732-733).
360. Mr. Tanczos' opinion, on behalf of MBDA, is that the granting
of the application will be catastrophic for its members, but this opinion
is not based on any real knowledge gained from the experiences of
MBDA's members in Altoona. (N.T. 03/19/2014 at 733-734).
96
DISCUSSION
Licensing raised thirteen (13) objections to Applicant's application
for the intermunicipal double transfer of Restaurant Liquor License No.
R-19377. Each objection will be addressed below.
Licensing's first and tenth objections will be addressed together.
Section 404 of the Liquor Code provides that:
in the case of ... the transfer of any license to a new location
... the board may, in its discretion, grant or refuse such new
license, transfer or extension if such place proposed to be
licensed is within three hundred feet of any church,
hospital, charitable institution, school, or public
playground....
[47 P.S. § 4-404] .
As with other licensees within two hundred (200) feet, section
404 of the Liquor Code [47 P.S. § 4-404] gives the Board discretion to
grant or deny a new license when the proposed licensed premises is
located within three hundred (300) feet of any church, hospital,
charitable institution, school or public playground. Such proximity
permits the Board to exercise its discretion, because the very
existence of these restrictive institutions within the statutory distance,
standing alone, is a sufficient basis for denial of the application. See
Altshuler v. Pennsylvania Liquor Control Bd., 729 A.2d 1272 (Pa.
97
Cmwith. 1999); Pennsylvania Liquor Control Bd. v. DeMutis, 97 Pa.
CmwIth. 507, 510 A.2d 154 (1986). However, as with other licensees,
such denial is not required, and the Board can exercise its discretion to
grant the application despite the presence of restrictive institutions.
West Reading Tavern, Inc. v. Pennsylvania Liquor Control Bd., 710
A.2d 648 (Pa. CmwIth. 1998). Again, the presence or absence of a
protest by the restrictive institution is not determinative in the Board's
decision to grant or deny the application. In re Her-Bell Inc., 176 Pa.
Super. 206, 107 A.2d 572 (1954).
The record shows that the Civic Club is located two hundred five
(205) feet from the proposed licensed premises, well within the three
hundred (300) feet constraint of section 404 of the Liquor Code, inter
alia.
In determining whether an organization constitutes a charitable
institution under the Liquor Code, "evidence as to the actual 'origin,
organization, function, objects and methods of operation' ... must be
examined." Irem Temple AAONMS v. Pennsylvania Liquor Control Bd.,
87 A.3d 983 (Pa. CmwIth. 2014) [quoting Subers Liquor License Case,
173 Pa. Super. 558, 98 A.2d 639, 640 (1953)].
98
The record shows that Sandra Hummel, the Civic Club's treasurer
of seven (7) years, related that the purpose of the Civic Club is to
educate women of the community and offer assistance and services.
The unincorporated civic organization is non-profit and generates
its funding from dues, donations, both public and private, and a trust.
Its members are not compensated.
The Civic Club provides public and private tours of its historic
premises free of charge while the gardens surrounding the Civic Club's
headquarters are always open to the public. More significantly, the
Civic Club sponsors a community nurse who provides free need-based
nursing care to physician-recommended patients. Speakers are
enlisted to lecture on a wide range of topics and educate the Civic
Club's members at monthly meetings. Further, the Civic Club provides
scholarship money to a student of the month.
While charity to all who apply for it is not realistic due to the
limitations of the Civic Club's resources, its nursing care and
scholarships are charitable by any definition. The benevolent purpose
and educational objectives of the Civic Club are clearly being achieved
free of any profit motive.
99
Therefore the Civic Club, located within three hundred (300) feet
of the proposed licensed premises, is a charitable institution under
section 404 of the Liquor Code.
The Civic Club filed a timely protest to Applicant's intermunicipal
transfer application and would have standing as a protestant in the
instant matter. The Civic Club's representatives at the instant hearing,
Ms. Smith and Ms. Hummel, expressed concerns regarding trash and
debris discarded by customers from the existing Sheetz location, even
though Ms. Smith testified that some of the trash was came from the
neighboring McDonald's. Also, the Civic Club was concerned that
Applicant's patrons would party and leave their trash in the Civic
Club's garden, the area neighboring the proposed licensed premises is
already congested, the problems in the area would increase, and that
gasoline would be sold near the proposed licensed premises.
Although the Civic Club expressed concerns regarding the
proposed licensed premises, the Board finds there was not enough
non -speculative evidence presented by the Civic Club to suggest that
Applicant's proposed licensed premises in particular presents any harm
to the Civic Club. Therefore, although the Board has the discretion to
100
refuse Applicant's application based on its proximity to the restrictive
institution, it found no compelling reason to do so in this case. 8
Licensing's second objection required the Board to take evidence
to determine if it should permit an interior connection with the
unlicensed convenience in accordance with section 3.52(b) of the
Board's Regulations, which provides that a licensed 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
Board." [40 Pa. Code § 3.52(b)].
It is well established that an agency's interpretation of the
statutes and regulations that it is authorized to enforce and implement
is entitled to deference. Sunoco, Inc. v. Department of Environmental
Protection, 865 A.2d 960 (Pa. Cmwlth. 2005). Where a statutory
scheme is technically complex, "a reviewing court must put aside its
discretion [in favor of] the expertise of the administrative agency." Id.
at 970. See also Pennsylvania Liquor Control Bd. v. Ripley, 107 Pa,
Cmwlth. 425, 529 A.2d 39 (1987).
Historically, interior connections have been approved in licensed
establishments that had interior connections to a number of
'The Board did not have to decide whether the Civic Club of Shippensburg had standing as
an intervenor because the Board determined that it has standing as a protestant.
101
commercial establishments. Section 3.52 of the Board's Regulations,
adopted in 1970, and its predecessors, Regulation 103 (effective 1952
Pa. Bulletin Vol. 1, No. 2, p. 78) and Regulation R-37-27 (effective on
August 18, 1937) reflect over seventy (70) years of policy that has
given the Board discretion to approve interior connections between
restaurant or eating place licenses and commercial establishments,
such as department stores, convenience stores, delicatessens, and
grocery stores. In 2004, the Board approved an interior connection
between a Sheetz convenience store and the restaurant being
licensed, although that decision was reversed for other reasons. See
Malt Beverages Distributors Ass'n v. Pennsylvania Liquor Control Bd.
("Ohio Springs II"), 918 A.2d 171 (Pa. Cmwlth. 2007), aff'd, 601 Pa.
449, 974 A.2d 1144 (2009). Also, the Board has permitted interior
connections with grocery stores, which were similar to the one (1) at
issue here, and the decisions of the Board were affirmed by this
Honorable Court and the Pennsylvania Supreme Court. (See Malt
Beverage Distributors Ass'n v. Pennsylvania Liquor Control Bd., 965
A.2d 1254 (Pa. Cmwlth. 2009), aff'd, 607 Pa. 560, 8 A.3d 885 (2010);
Malt Beverage Distributors Ass'n v. Pennsylvania Liquor Control Bd.,
965 A.2d 1269 (Pa. Cmwlth. 2009), aff'd, 607 Pa. 560, 8 A.3d 885
(2010); Malt Beverage Distributors Ass'n v. Pennsylvania Liquor
102
Control Bd., 966 A.2d 1165 (Pa. CmwIth. 2009); aff'd, 607 Pa. 560, 8
A.3d 885 (2010); Malt Beverage Distributors Ass'n v. Pennsylvania
Liquor Control Bd., 966 A.2d 1172 (Pa. Cmwlth. 2009), aff'd, 607 Pa.
560, 8 A.3d 885 (2010); Malt Beverage Distributors Ass'n v.
Pennsylvania Liquor Control Bd., 966 A.2d 1180 (Pa. CmwIth. 2009),
aff'd, 607 Pa. 560, 8 A.3d 885 (2010)).
Applicant's site plans show the proposed licensed premises of the
new Sheetz facility will be a lot larger than the Sheetz Convenience
Store. The businesses will be separated by an eight (8) foot wall
having a one (1) four (4) -foot wide interior opening for use by the
general public. Operations between these two (2) businesses will be
equally separated, with their respective products being stored,
displayed, and sold only within their particular areas. Aside from
tobacco products, candy, and gum, there will be no commonality of
merchandise.
Applicant intends only to sell malt or brewed beverages in six
(6) -pack and twelve (12) -pack quantities, with the possession of these
beverages prohibited within the convenience store, unless previously
purchased in the proposed licensed premises.
Applicant's proposed separation between the unlicensed
convenience store and proposed licensed premises would be in
103
compliance with section 468(e) of the Liquor Code [47 P.S. § 4-
468(e)]9 and section 3.54 of the Board's Regulations [40 Pa. Code §
3 54 Ji.0
Testimony was also provided that Applicant will have three (3)
cash registers located at its proposed licensed premises where all malt
and brewed beverages must be purchased, as well as food items
prepared in Applicant's proposed licensed kitchen and other items
located at the proposed licensed premises. Applicant provided
testimony that patrons would not be permitted to take items from the
convenience store and purchase said items at the proposed licensed
premises.
In view of such arrangements, the clear delineation of these
enterprises, and prior approval by the Board of other similar
operations, the Board sees no reason to not approve the interior
connection between the proposed licensed premises and the
unlicensed convenience store.
9 Section 468(e) of the Liquor Code states the Board "may not approve an interior
connection that is greater than ten feet wide between a licensed business and another
business." [47 P.S. § 4-468(e)].
I° Section 3.54 of the Board's Regulations states that where the Board "has approved the
operation of another business which has an inside passage or communication to or with the
licensed premises, the extent of the licensed area shall be clearly indicated by a permanent
partition at least 4 feet in height." [40 Pa. Code § 3.54].
104
Licensing's third objection required the Board to take evidence to
determine what "take home products" consist of which are intended to
be sold in the adjacent unlicensed convenience store.
Mr. Campbell testified the unlicensed convenience store will sell
take-home food items (items that someone normally could not
consume in one (1) sitting), such as loaves of bread, gallons of milk,
cheese, bologna, cases of soda, large bags of chips, and large
containers of orange juice. Also, Mr. Campbell testified that health
and beauty items will be sold in the unlicensed convenience store.
There was no evidence that these products will be sold or stored in the
proposed licensed premises. The Board sees no issue with the
products being sold in the unlicensed convenience store.
Licensing's fourth objection required the Board to take evidence
to determine what convenience store items Applicant intends to sell on
the proposed licensed premises.
Mr. Campbell testified that Applicant will not sell convenience
store items in the proposed licensed premises, other than tobacco
products, gum, and candy. Mr. Campbell testified that Applicant will
not display or sell bulk items, such as two (2) liter bottles of soda in
the proposed licensed premises. The Board finds that Applicant is not
105
using the proposed licensed premises to operate a convenience store
business.
Licensing's fifth objection is similar to the second objection and
required the Board to take evidence to determine whether it should
permit Applicant to operate another business (convenience store
items) on the licensed premises, in accordance with section 3.52(c) of
the Board's Regulations, which provides that a licensee "may not
conduct another business on the licensed premises without Board
approval." [40 Pa. Code § 3.52(c)]. As with section 3.52(b), a
decision as to whether to approve such other business is left to the
Board's discretion.
The record shows that Applicant will be making and providing an
extensive food selection and a variety of single -serve non-alcoholic
beverages for the proposed licensed premises. Also, the record shows
that the products at the proposed licensed premises must be paid for
at any one (1) of the three (3) cash registers at the proposed licensed
premises. Lastly, the record shows that not only will the convenience
store's inventory of non-food and bulk food items not be displayed or
stored in the proposed licensed restaurant, Applicant's employees will
be trained to refuse the purchase of these items at the proposed
licensed premises' three (3) cash registers.
106
The Board finds that Applicant is not operating another business
on the proposed licensed premises.
Licensing's sixth objection required the Board to take evidence to
determine if Applicant will allow minors to frequent its licensed
premises, in violation of section 493(14) of the Liquor Code. Section
493(14) of the Liquor Code provides that a hotel, restaurant, club, or
retail dispenser licensee is in violation of the Code if it allows minors
(persons under twenty-one (21) years of age) to frequent the licensed
premises.
Minors may only frequent licensed premises if:
(a) they are accompanied by a parent; (b) they
are accompanied by a legal guardian; (c) they
are under proper supervision; (d) they are
attending a social gathering; or (e) the hotel,
restaurant or retail dispenser licensee has gross
sales of food and nonalcoholic beverages equal
to fifty per centum or more of its combined gross
sale of both food and alcoholic beverages. If a
minor is frequenting a hotel, restaurant or retail
dispenser licensee under subsection (e), then the
minor may not sit at the bar section of the
premises, nor may any alcoholic beverages be
served at the table or booth at which the said
minor is seated unless said minor is with a
parent, legal guardian or under proper
supervision. Further, if a hotel, restaurant, club
liquor licensee or retail dispenser is hosting a
social gathering under subsection (d), then
written notice at least forty-eight hours in
advance of such gathering shall be given to the
Bureau of Enforcement. If a minor is
frequenting licensed premises with proper
107
supervision under subsection (c), each
supervisor can supervise up to twenty minors,
except for premises located in cities of the first
class, where each supervisor can supervise up to
five minors. Notwithstanding any other
provisions of this section, if the minors are on
the premises as part of a school -endorsed
function, then each supervisor can supervise fifty
minors. Nothing in this clause shall be construed
to make it unlawful for minors to frequent public
venues or performing arts facilities.
[47 P.S. § 4-493(14)].
Section 102 of the Liquor Code defines proper supervision as
"Proper supervision" shall mean a person
twenty-five (25) years of age or older who is
directly responsible for the care and conduct of a
minor or minors while on the licensed premises
and who keeps the minor or minors within his or
her sight or hearing. If the licensee, an
employee of a licensee or anyone else paid by
the licensee is performing as proper supervisor,
then that person may not perform any other
employment-related duties; otherwise proper
supervision shall consist of unpaid volunteers.
[47 P.S. § 1-102].
The requirement set forth in part (e) of section 493(14) is
generally referred to as the "Pizza Hut Rule." Ignoring the other issues
regarding the interior connections and operation of another business
and focusing exclusively on the proposed licensed premises, the Board
finds it to be unlikely that Applicant's proposed cafe will violate the
Pizza Hut Rule, or any other provision of section 493(14).
108
Minors will be permitted to frequent the proposed licensed
premises. Mr. Campbell provided great detail concerning the extent of
Applicant's menu and the plans to provide food similar to that of
nationally franchised restaurants under one (1) roof, with the resultant
estimation that food and non-alcoholic beverage sales will greatly
exceed fifty percent (50%) of sales of food and alcoholic beverages.
Ali employees in the restaurant portion of the premises will be
RAMP -certified and will also receive TIPS training concerning
intervention procedures. The seating area will be monitored by video
cameras, with Applicant's manager, shift supervisors, and Security
Operations Center employees having the ability to view this
surveillance real time on -premises and remotely. Log entries of
monitoring will be required at fifteen (15) to twenty (20) minute
intervals whenever patrons are in this seating area consuming
alcoholic beverages. Additionally, the proposed licensed premises'
three (3) cashiers will be assigned the duty to monitor the area
directly and presumably via video monitors located above the
registers, as will the shift supervisor from 10:00 p.m. to 2:00 a.m.
Applicant's customer greeter, who is also assigned the maintenance of
the soda dispensers, will have this duty as well.
109
Further, two (2) security employees and at least initially, two (2)
Loss Investigation Team employees, will be on the premises during
hours that alcoholic beverages are sold and will be instructed to
monitor the seating areas and parking lot for consumption issues
including third party purchases, possession and consumption by
minors.
Every alcohol sale will require acceptable photo identification that
will be scanned at the register before the sale can be completed. Each
malt beverage transaction at each register in the restaurant will be
monitored by video, which registers are again the only locations where
alcoholic beverages can be purchased. Additionally, employees will be
trained to inspect patrons' identifications to ensure their validity and to
question the customers regarding the biographical information they
reference. Third party sales will again be discouraged through
apparent vigilant observation of the parking lot by security and group
purchase of beer will require each member of the group to produce
valid identification.
The proposed licensed premises will not have a bar, will not sell
liquor or wine, and will not offer amusements that might attract
minors.
110
Based on the above, the Board is convinced that despite the
likelihood that minors will be present at the proposed licensed
premises, Applicant has sufficient safeguards in place and will take
every precaution necessary to operate with the rules and regulations
set forth by the Board and the legislature with regard to minors.
Licensing's seventh objection required the Board to take evidence
concerning the sale of liquid fuels or oil at the same location as the
proposed licensed premises, which is prohibited under sections 404
and 468 of the Liquor Code [47 P.S. §§ 4-404, 4-468].
Section 404 of the Liquor Code provides in pertinent part:
The board shall refuse any application for a new license, the
transfer of any license to a new location or the extension of
any license to cover an additional area where the sale of
liquid fuels or oil is conducted.
[47 P.S. § 4-404].
Section 431(b) of the Liquor Code provides in pertinent part:
The board 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.
[47 P.S. § 4-431(b)].
Section 432(d) of the Liquor Code provides in pertinent part:
The board shall refuse any application for a new license, the
transfer of any license to a location where the sale of liquid
111
fuels or oil is conducted or the extension of an existing
license to cover an additional area .
[47 P.S. § 4-432(d)].
Section 468(a)(3) of the Liquor Code provides in pertinent part:
No 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)].
Sections 431(b) (malt and brewed beverages manufacturers',
distributors', and importing distributors' licenses), 432(d) (malt and
brewed beverages retail licenses), 404 (hotel, restaurant, and club
liquor licenses), and 468(a)(3) (transfer of licenses) each have
language dealing with the prohibition of liquid fuels and oil. Sections
431(b) and 432(d) specify "to a location where the sale of liquid fuels
or oil is conducted," and 404 specifies "to a new location . . . where
the sale of liquid fuels or oil is conducted." Section 468(a)(3) specifies
"to any place or property upon which is located as a business the sale
of liquid fuels and oil."
Although the terms of "location," "place," and "property" are not
defined in the Liquor Code, the Commonwealth Court in Water Street
Beverage, Ltd. v. Pennsylvania Liquor Control Bd., 84 A.3d 786 (Pa.
Cmwlth. 2014) ), appeal denied, held that the Board's decision to allow
112
an applicant applying for an eating place malt beverage license to have
gasoline pumps located off its proposed licensed premises was a valid
interpretation of the term "location" in section 432(d) of the Liquor
Code because the term "location" is defined in relation to the particular
area of the licensed premises.
The rules of statutory construction indicate that when words are
not defined by a statute, they should be given their common and
approved usage. [1 Pa. C.S. § 1903(a)].
As to the terms "place" and "property" as used in section
468(a)(3) of the Liquor Code, one (1) must look at 431(b), 432(d),
404, and 468(a)(3) together. Sections 431(b), 432(d), and 404
address a new license and the transfer of an existing license, whereas
section 468(a)(2) only addresses the transfer of a license. Since the
terms "place" and "property" are not defined in the Liquor Code, the
Board concludes that said terms as used in section 468(a)(3) should
be interpreted similar to the term "location" in section 431(b), 432(d),
and 404 of the Liquor Code because any other interpretation would
lead to an absurd result.
The record shows the gasoline pumps will be located
approximately eighty (80) feet from Applicant's proposed licensed
premises, and between the proposed licensed premises and the gas
113
pumps, there will be a sidewalk, ballards, parking stalls, macadam
drive area, and a speed bump.
The record provides that Sheetz, Inc. will have an employee
located inside the unlicensed convenience store who will be responsible
for the proposed gas pumps. Also, the record provides that gasoline
may only be purchased at the gas pumps and the employees who are
working at Applicant's proposed licensed premises will not have any
involvement with the gas pumps.
Therefore, the Board finds that liquid fuels will not be sold at the
same location as the proposed licensed premises, and as such, there is
no violation of sections 404 and 468 of the Liquor Code.
Licensing's eighth objection required the Board to take evidence
to determine if there are valid reasons for Alvin Oberholtzer, Terry
Helm, and Sharon Hershey to file late petitions to intervene and
whether they would be directly aggrieved by the Board granting
Applicant's transfer application.
Section 17.13(b) of the Board's Regulations provides that the
Board "may accept an untimely filed protest or petition to intervene,
but only upon good cause shown." [40 Pa. Code § 17.13(b)].
The record shows that Mr. Oberholtzer and Ms. Hershey failed to
attend and testify at the instant hearing. Therefore, Mr. Oberholtzer
114
and Ms. Hershey would not have standing as intervenors in the instant
matter.
Mr. Helm did attend and testify at the instant hearing. However,
he failed to offer any explanation for his late -filed petition to intervene.
Therefore, Mr. Helm would not have standing as an intervenor in the
instant matter.
Licensing's ninth objection required the Board to take evidence to
determine if John Mummau, Lewis Deardorff, Luke and Lois Martin,
and James Andrews would be directly aggrieved by the granting of
Applicant's application.
Section 17.11 of the Board's Regulations provides that when an
application is filed for the transfer of a liquor license, a protest may be
filed with the Board by any of the following: a licensee whose licensed
premises is located within two hundred (200) feet of the proposed
licensed premises; a church, hospital, charitable institution, school or
public playground located within three hundred (300) feet of the
proposed licensed premises; or a resident of the neighborhood within a
radius of five hundred (500) feet of the proposed licensed premises.
[40 Pa. Code § 17.11(a)]. Only valid protests by the above -listed
groups render the protestant a party to the proceeding; otherwise, a
petition to intervene must be filed. [40 Pa. Code § 17.11(e)].
115
A person who can demonstrate a direct interest in such an
application, and who can further demonstrate that a Board decision
contrary to the person's direct interest will cause the person to be
aggrieved, may file a petition to intervene. [40 Pa. Code § 17.12(a)].
A petition to intervene may be granted at the discretion of the Board,
which may grant or deny the petition in whole or in part, or authorize
limited participation. [40 Pa. Code § 17.12(b)]. A petition to
intervene must be filed within thirty (30) days of the posting of the
Notice of Application; the Board may only accept an untimely -filed
protest or petition to intervene upon good cause shown. [40 Pa. Code
§ 17.13(b)]. Failure to appear or testify at the scheduled hearing on
the matter may remove the reasons for protest or intervention from
the Board's consideration. [40 Pa. Code § 17.13(e)]. Finally, if the
Board determines that two (2) or more protestants or intervenors have
substantially similar interests and positions, the Board may limit the
testimony to one (1) or more representatives. [40 Pa. Code §
17.13(f)].
The record shows that Mr. Deardorff and Luke and Lois Martin
failed to attend and testify at the instant hearing. Therefore, they
would not have standing as intervenors in the instant matter.
116
Mr. Mummau and Mr. Andrews did attend the hearing and
testified. Mr. Mummau expressed concerns with Shippensburg
University being within blocks of the proposed licensed premises, his
sister-in-law and brother-in-law were killed by a seventeen (17) -year-
old drunk driver, an incident where an intoxicated college student
almost died, his belief that there are already too many licensees, and
possibility of more incidents of driving under the influence of alcohol
and public drunkenness.
Mr. Andrews expressed concerns with regard to minors having
access to the proposed licensed premises twenty-four (24) hours a
day, the close proximity of the proposed licensed premises to
Shippensburg University, individuals' lives being destroyed by impaired
drivers, and the proximity of the convenience store.
Clearly the evidence offered by Mr. Mummau and Mr. Andrews
was speculative in nature. The Board finds that Mr. Andrews and Mr.
Mummau failed to provide sufficient non -speculative evidence to show
how they would be directly aggrieved by the granting of Applicant's
transfer application. Therefore, they do not have standing as
intervenors in the instant matter.
Licensing's eleventh objection required the Board to take
evidence to determine if Malt Beverage Distributors Association,
117
Gabler's Beverage Distributor, Inc., and PKD, Inc. would be directly
aggrieved by the granting of this application, which would qualify them
as a intervenors in this matter. See In re Application of Family Style
Restaurant, Inc., 503 Pa. 109, 468 A.2d 1088 (1983); Malt Beverage
Distributors Ass'n v. Pennsylvania Liquor Control Bd. ("Ohio Springs
881 A.2d 37 (Pa. Cmwlth. 2005), appeal denied, 586 Pa. 775, 895
A.2d 1264 (2006).
When determining the status of intervenors, it is important to
keep in mind the following framework.
When location is at issue in a license transfer case, as it is
herein, certain persons/entities are permitted to file a protest to the
application, as long as they do so in a timely manner. [47 P.S. § 4-
404; 40 Pa. Code § 17.11(a)]. Such entities include other licensees
within two hundred (200) feet; churches, hospitals, charitable
institutions, schools, or public playgrounds within three hundred (300)
feet; and residents of the neighborhood with a radius of five hundred
(500) feet. [47 P.S. § 4-404; 40 Pa. Code § 17.11(a)]. Only valid
protests render the protestant a party to the proceeding. [40 Pa. Code
§ 17.11(e)]. All other persons/entities that wish to protest the
application must file a petition to intervene. [Id.].
118
A person who can demonstrate a direct interest in a transfer
application, and who can further demonstrate that a Board decision
contrary to the person's direct interest will cause the person to be
aggrieved, may file a petition to intervene. [40 Pa. Code § 17.12(a)].
A petition to intervene may be granted at the discretion of the Board,
which may grant or deny the petitions in whole or in part, or authorize
limited participation. [40 Pa. Code § 17.12(b)]. A petition to
intervene must be filed within thirty (30) days of the posting of the
Notice of Application; the Board may only accept an untimely -filed
protest or petition to intervene upon good cause shown. [40 Pa. Code
§ 17.13(b)]. Failure to appear or testify at the scheduled hearing on
the matter may remove the reasons for protest or intervention from
the Board's consideration. [40 Pa. Code § 17.13(e)]. Finally, if the
Board determines that two (2) or more protestants or intervenors have
substantially similar interest and positions, the Board may limit the
testimony to one (1) or more representatives. [40 Pa. Code §
17.13(f)].
To show direct aggrievement, a petitioner must show that it has
a direct and substantial interest in the outcome of the matter and
must show a sufficiently close causal relation between the decision and
the petitioner's asserted injury to qualify his/her interest as
119
immediate. William Penn Parking Garage, Inc. v. City of Pittsburgh,
464 Pa. 168, 346 A.2d 269 (1975). An interest is considered to be
substantial when there is a discernible adverse effect to an interest of
the aggrieved person/entity that differs from the abstract interest of
the public generally in having others comply with the law. Id. An
interest is direct when the aggrieved person/entity can show a causal
connection between the alleged harm to his/her/its interest and the
matter at hand. Id. An interest is immediate when the causal
connection is not too remote. Id. An association, as a representative
of its members, may have standing to bring a cause of action even in
the absence of injury to itself, but it must allege, and show, that at
least one (1) of its members is suffering immediate or threatened
injury as a result of the challenged action. Pennsylvania School
Boards Ass'n v. Commonwealth Ass'n of School Administrators,
Teamsters Local 502, 696 A.2d 859 (Pa. Cmwlth. 1997); see also In re
Application of Family Style Restaurant, Inc., 503 Pa. 109, 468 A.2d
1088 (1983); Tacony Civic Ass'n v. Pennsylvania Liquor Control Bd.,
668 A.2d 584 (Pa. Cmwlth. 1995).
Malt Beverage Distributors Association, Gabler's Beverage
Distributor, Inc., and PKD, Inc. all filed timely petitions to intervene in
this matter.
120
Stephen Gabler attended the instant hearing and testified on
behalf of Gabler's Beverage Distributors, Inc. Mr. Gabler is the owner
of Gabler's Beverage Distributors, Inc., which is located four and one-
half (41/2) blocks from the proposed licensed premises. Gabler's
Beverage Distributors, Inc. has been in operation for twenty-five (25)
years.
Patrick Diehl attended the instant hearing and testified on behalf
of PKD, Inc. Mr. Diehl is the president of PKD, Inc., which is located
four (4) blocks from the proposed licensed premises. PKD, Inc. has
been in business for nine (9) years.
On behalf of their licensed businesses, Mr. Gabler and Mr. Diehl
testified that the approval of Applicant's application would cause
financial hardship due to an inability to compete. These mutual
opinions were based upon the presumed purchasing power of
Applicant, which has numerous licensed convenience store operations
and pools its purchases in quantity directly from import distributors,
subverting the distribution system in Pennsylvania and selling directly
to the public at competitive prices without the obligation of charging or
collecting sales tax.
In addition, both owners expressed concerns regarding
Applicant's ability to sell malt or brewed beverages cheaper than
121
distributors, Applicant being able to sell smaller quantities of no more
than one hundred ninety-two (192) fluid ounces per transaction, and
Applicant being able to sell different varieties of beer within the same
six (6) -pack or twelve (12) -pack."
These distributor owners also alleged direct aggrievement from
unfair competition based upon the proximity of gas pumps and the
convenience store operation to the proposed licensed premises, which
would provide a one-stop shopping enticement, though acknowledging
that their businesses could potentially be configured similarly.
However these distributors could not, unless they chose to construct a
further adjoining restaurant, sell the variety of prepared food items the
Applicant will offer.
Mark Tanczos attended the instant hearing and testified on behalf
of MBDA. Mr. Tanczos, as MBDA's president, expressed MBDA's
opposition to the sale of liquid fuels and alcoholic beverages at a single
location, and opined the result in this case would be catastrophic for its
members. Mr. Tanczos referenced the Liquor Code's creation of niche
markets with the distributors' niche being the sale of beer for off -
premises consumption and argued this should be kept intact to protect
"The sale of smaller quantities of malt or brewed beverages is a right given to all retail
licensees who hold restaurant liquor licenses, not just Applicant.
122
this market. On behalf of the MBDA, he viewed the proposed premises
as being a de facto distributor because of Sheetz's exploitation of its
out-of-state relationship with manufacturers, particularly concerning
seasonal beers.
This issue is not new to the Board. In Ohio Springs I, MBDA
(among others) filed a petition to intervene in a double transfer
application filed by Ohio Springs, Inc., which operates a Sheetz
convenience store in Altoona, and wished to add the sale of malt or
brewed beverages to its restaurant offerings. The issues raised by
MBDA in that application were remarkably similar to those raised in
the instant case. The Board initially refused intervenor standing to
MBDA on the basis that it failed to show a direct, substantial, and
immediate interest or immediate harm to the organization or its
members. However, the Commonwealth Court reversed the Board's
decision regarding intervention, holding that MBDA should have been
granted intervenor status. In doing so, the Court noted:
The Court is persuaded that the Board's denial of MBDA's
petition in the present case must be classified as an abuse
of discretion and an error of law. First, even under the
narrowest interpretation of association standing principles,
MBDA presented evidence in the form of the testimony of
Hogan and Shipula that retail sales of beer by this Sheetz
store will be damaging to any nearby D distributorship
because the Sheetz will offer many items that the
distributor cannot offer, including food for consumption on
123
the premises, gasoline and convenience store items. If
beer for takeout is available as well, it will likely be
purchased by customers who went there originally for some
other purpose, thereby taking sales from distributors.
Hogan testified that the results would likely be catastrophic
for a nearby D distributor and that there was such a
member distributor [nearby]. An association need only
allege that one member is suffering immediate or
threatened injury. North-Central Pennsylvania Trail
Lawyers Ass'n.
More generally, however, the Court also agrees that the
Board should have exercised its discretion to grant standing
to MBDA because of the new and very different nature of
the application. As MBDA points out, even in Application of
El Rancho Grande, 496 Pa. at 508, 437 A.2d at 1156, the
Supreme Court referred to a statement of the United States
Supreme Court in Association of Data Processing Serv.
Orgs., Inc. v. Camp, 397 U.S. 150, 154, 25 L. Ed. 2d 184,
90 S. Ct. 827 (1970), that where statutes are concerned
"the trend is toward enlargement of the class of people who
may protest administrative action." In NEC Pennsylvania
Racing the applicable regulation permitted consideration of
the best interests of horse racing generally, and the Horse
Racing Commission concluded there that granting the
application was in the best interest of racing. The Court
stated that MEC had standing akin to that of the "local
community" in Cashdollar v. State Horse Racing
Commission, 143 Pa. Cmwlth. 650, 600 A.2d 646 (Pa.
Cmwlth. 1991), which had standing to appeal where the
statute required consideration of the public interest and the
Court held that when an agency was directed in its enabling
statute to consider the effect of its decision on a particular
class of individuals, then they might have standing to
challenge a decision on the ground that the agency did not
fulfill it statutory duty.
With 400 beer distributor members, MBDA certainly is
integrally involved in the regulated distribution of beer and
malt beverages generally. The Liquor Code created the D
Distributor class and to some extent protects that class. A
124
statewide trade association, such as MBDA, is likely much
better suited than any individual distributor to represent the
interests of the class when a proposal is made that has the
potential to alter dramatically the current balance under
applicable statutory provisions.
Ohio Springs I, 881 A.2d at 42-43 (footnotes omitted).
Similarly, the Commonwealth Court has considered the
appropriateness of numerous petitions to intervene by MBDA and
certain local distributors in a series of applications filed by Weg ans.
In those cases, Wegmans applied for double transfers of restaurant
liquor licenses to its Market Cafe restaurants located in its
Pennsylvania grocery stores. In most of these cases, MBDA and
certain local distributors filed petitions to intervene, on similar
reasoning to that presented herein. On the basis of this Court's
reasoning in Ohio Springs I, the Board granted these entities standing
in situations where the petitions were timely -filed and the entities
offered testimony at the hearings to show direct aggrievement, and
the Board's decisions on intervention were affirmed by this Honorable
Court. See Malt Beverage Distributors Ass'n v. Pennsylvania Liquor
Control Bd., 965 A.2d 1254 (Pa. Cmwlth. 2009), aff'd, 607 Pa. 560, 8
A.3d 885 (2010); Malt Beverage Distributors Ass'n v. Pennsylvania
Liquor Control Bd., 965 A.2d 1269 (Pa. Cmwlth. 2009), aff'd, 607 Pa.
560, 8 A.3d 885 (2010); Malt Beverage Distributors Ass'n v.
125
Pennsylvania Liquor Control Bd., 966 A.2d 1165 (Pa. Cmwlth. 2009),
aff'd, 607 Pa. 560, 8 A.3d 885 (2010); Malt Beverage Distributors
Ass'n v. Pennsylvania Liquor Control Bd., 966 A.2d 1172 (Pa. CmwIth.
2009), aff'd, 607 Pa. 560, 8 A.3d 885 (2010); Malt Beverage
Distributors Ass'n v. Pennsylvania Liquor Control Bd., 966 A.2d 1180
(Pa. Cmwlth. 2009), aff'd, 607 Pa. 560, 8 A.3d 885 (2010).
Given the Supreme Court's reversal of the Board's decision
denying standing to MBDA in Ohio Springs I, this Court's affirmance of
the Board's decisions to grant standing to MBDA and/or certain local
distributors in the Wegmans cases and most recently in Water Street
Beverage, Ltd. v. Pennsylvania Liquor Control Bd., 84 A.3d 786 (Pa.
Cmwlth. 2014), and given the similar nature of the issues raised in
those cases with what has been raised by Malt Beverage Distributors
Association, Gabler's Beverage Distributor, Inc., and PKD, Inc. in the
instant case, the Board finds that each would have standing as an
intervenor in the instant matter.
Licensing's thirteenth objection deals with the timely protest of
Jaye Alleman. Mr. Alleman attended the hearing and provided
testimony that he lives within five hundred (500) feet of the proposed
licensed premises. Therefore, Mr. Alleman has protestant status in the
126
instant matter due to his timely -filed protest and appearance at the
instant hearing.
Finally, Licensing's twelfth objection required the Board to take
evidence to determine that the approval of this application will not
adversely affect the health, welfare, peace and morals of the
neighborhood within a radius of five hundred (500) feet of the
proposed licensed premises.
In the case of any new license or the transfer of any license to a
new location, the Board may, in its discretion, grant or refuse such
new license or transfer if such a place proposed to be licensed is within
three hundred (300) feet of any church, hospital, charitable institution,
school, or public playground or if such new license or transfer is
applied for a place which is within two hundred (200) feet of any other
premises which is licensed by the Board. [47 P.S. § 4.404]. In this
case, one (1) restrictive institution is located within three hundred
(300) feet; no other licensees are in this area.
Further, the Board shall refuse any application for a transfer of
any license to a new location if, in the Board's opinion, such new
license or transfer would be detrimental to the welfare, health, peace
and morals of the neighborhood within a radius of five hundred (500)
127
feet of the place proposed to be licensed. [Id.] However, the Board
must consider refusing a transfer only where the nature of the
neighborhood and the nature of the proposed licensed premises are
such that approval of the license would be detrimental. K & K
Enterprises, Inc. v. Pennsylvania Liquor Control Bd., 145 Pa. CmwIth.
118, 602 A.2d 476 (1992). A perceived threat to a neighborhood is
not sufficient cause for the Board to deny a transfer application.
Arrington v. Pennsylvania Liquor Control Bd., 667 A.2d 439 (Pa.
Cmwlth. 1995).
Licensing's supervisor, Mr. Lamark, estimated Applicant's
surrounding neighborhood to be sixty percent (60%) residential and
forty percent (40%) commercial.
The building in which the proposed licensed premises will be
located will have three (3) outdoor seating areas, where the
consumption of alcoholic beverages will be forbidden.
As discussed above, Applicant's operation at the new Sheetz
facility will have eight (8) or more Sheetz employees working at any
given time, will have three (3) serving areas, seven (7) storage areas,
two (2) kitchens, and an office where additional video monitors will be
located. Access to the proposed licensed premises can be gained by
128
one (1) exterior door available to the public located off a vestibule
which will also contain an entrance to a convenience store.
Sixty-four (64) video cameras connected to ninety (90) -day DVRs
will surveil the interior and exterior of the entire location, including the
self-service walk-in beer cooler. The DVR system is tied in with panic
button pendants apparently presently worn by employees who deal
with customers or patrol outside and which will be placed at the
restaurant's three (3) registers. When depressed, these pendants alert
Sheetz's Security Operations Center in Altoona ("SOC"), which can then
communicate with the summoning employee, contact the police and/or
control the surveillance cameras to zoom in and preserve the
recording. In that regard the SOC is notified of all alcohol sale refusals,
which are logged with the involved party being photographed.
Chief Scott indicated the Sheetz premises is a late-night catchall
for the community after the Borough's licensed establishments have
closed, and the security is currently ineffective and insufficient. The
Chief expressed his concern that licensing this Sheetz location could
worsen an already volatile late-night situation where presently one (1)
of the Borough's three (3) third shift police officers is stationed every
Thursday, Friday, and Saturday night as a deterrent. Chief Scott
129
related, however, that the Sheetz video system is good and that most
of the time he is provided with recordings upon request.
It appears that Applicant is going to work with Chief Scott to
address his concerns with security at the Sheetz premises. Also,
Applicant is going to have security monitor the inside and outside of the
premises, and this security will work with SOC and the Sheetz's Loss
Investigation Team members.
Applicant will' have numerous precautions to prevent sales to
minors, as discussed concerning objection 6 above, as well as the
visibly intoxicated. Applicant is planning on having the appropriate
staffing available and has purchased sophisticated kitchen equipment
to help alleviate the wait times for prepared foods.
Applicant will frequently monitor its interior seating area, where
on -premises consumption will solely be permitted, by both employees
and the SOC.
Many of the concerns of the Civic Club and nearby resident Mr.
Alleman regarding littering should be addressed by Applicant contacting
the Borough to see if the Borough's trash receptacle can be emptied
more often so it does not overflow.
There was no evidence presented that Applicant is not a
financially responsible entity or that any of its officers have criminal
130
records. Therefore, the Board finds that the approval of this
application would not adversely affect the health, welfare, peace, and
morals of the neighborhood within five hundred (500) feet.
131
CONCLUSIONS OF LAW
1. Applicant received the requisite notice of Licensing's objections
to its application and of the date, time, and place of the hearing
regarding the application.
2. The proposed licensed premises will be located within three
hundred (300) feet of the Civic Club of Shippensburg, a charitable
institution.
3. Applicant's interior connection to the unlicensed grocery store is
approved, in accordance with section 3.52(b) of the Board's Regulations.
4. Bulk food, large size non-alcoholic beverages, and non-food
items such as, health and beauty aids, will be sold as take-home products
in the unlicensed convenience store.
5. Applicant will not sell convenience store items on the licensed
premises other than tobacco and single serve candy.
6. Applicant will not be operating another business on the
proposed licensed premises.
7. If operated as proposed, Applicant has safeguards in place to
not allow minors to frequent its proposed licensed premises, in violation
of section 493(14) of the Liquor Code.
132
8. Liquid fuels will not be sold at the location of the proposed
licensed premises, in violation of sections 404 and 468 of the Liquor
Code.
9. Terry Helm failed to provide sufficient good for his late -filed
petition to intervene and he is not granted intervenor status in the instant
matter.
10. Alvin Oberholtzer, Sharon Hershey, Lewis Deardorff, and Luke
and Lois Martin failed to appear for hearing and they are not granted
intervenor status in the instant matter.
11. John Mummau failed to provide sufficient non -speculative
evidence on how he would be directly aggrieved by the approval of
Applicant's transfer application.
12. James Andrews failed to provide sufficient non -speculative
evidence on how he would be directly aggrieved by the approval of
Applicant's transfer application.
13. The Civic Club of Shippensburg has standing as a protestant in
the instant matter because it is a charitable institution that is located
within three hundred (300) feet of the proposed licensed premises.
133
14. Gabler's Beverage Distributor, Inc., PKD, Inc., and Malt
Beverage Distributors Association are each granted intervenor status in
this matter.
15. Jaye Alleman has standing as an intervenor in the instant
matter because he resides within five hundred (500) feet of the proposed
licensed premises.
16. The approval of this application will not adversely affect the
health, welfare, peace, and morals of the neighborhood within a radius of
five hundred (500) feet of the proposed licensed premises.
17. The application for the intermunicipal double transfer of
Restaurant Liquor License No. 19377 is granted prior approval by the
Board.
PENNSYLAN RCNTR9L BOARD
134
oafd 'Secretary
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIC CLUB OF SHIPPENSBURG ) CIVIL DIVISION
(OHIO SPRINGS, INC. T/A SHEETZ, ) t=
Applicant) ) STATUTORY APPEAL , :/
Petitioner ) C)
-�
1--,-1
) -0-_,7 N c41 F,,-.
vs. ) CASE NO. 14-4647 r`cn;
-;z:.
D`' , c:
PENNSYLVANIA LIQUOR CONTROL ) -4..„..• ---''
BOARD ) �� - o
7 n
Respondent. ) - �.•" y,l
J / J
.-.4rr .moi
�4^
ANSWER TO PETITION FOR APPEAL FROM DECISION OF
PENNSYLVANIA LIQUOR CONTROL BOARD
NOW COMES Pennsylvania Liquor Control Board ("PLCB"), Respondent by and
through its Counsel, Rodrigo J. Diaz, Esquire and hereby files this Answer to Petition for
Appeal from the decision of the PLCB and in support thereof, and avers as follows:
1. Admitted.
2. Admitted.
3. Admitted.
4. Admitted. By way of further answer, the Board's decision in this matter
was also appealed to the Commonwealth Court of Pennsylvania by the Malt Beverage
Distributors Association, Gabler's Beverage Distribution, Inc. and PKD, Inc. That appeal
can be found at number 1352 CD 2014. Respondent, Board, as filed an application with
the Commonwealth Court to consolidate both appeals. That application remains pending.
5. Paragraph five (5) states a conclusion of law for which no further response
is necessary. If a further response is necessary, the averment is denied. By way of
further answer the Commonwealth Court recently rejected the argument that Section 464
of the Liquor Code requires the Board to include the reasons for its decision when it
issues an initial Order on an application. See Arena Bev. Corp. v. Pa. Liquor Control
Bd., Pa. Comm. LEXIS 389 (Pa. Commw. July 30, 2014).
6.
necessary.
7.
response is
Paragraph six (6) states a conclusion of law for which no further response is
If a further response is deemed necessary, the averment is denied.
Paragraph seven (7) states a conclusion of law for which no further
necessary.
8. Paragraph eight (8) states a conclusion of law for which no further response
is necessary. If a further response is deemed necessary, the averment is denied.
9. Paragraph nine (9) states a conclusion of law for which no further response
is necessary. If a further response is deemed necessary, the averment is denied.
10. Paragraph ten (10) is a conclusion of law for which no further response is
necessary.
WHEREFORE, Respondent asks this Honorable Court to affirm the Board's
Order in this matter and approve the transfer of Pennsylvania Restaurant Liquor License
No. R-19377 to Ohio Springs, Inc.
September 16, 2014 Respectfully submitted,
RODRIGOIAZ
Executive Deputy Chief Counsel
Attorney I.D. No. 62259
PENNSYLVANIA LIQUOR CONTROL BOARD
401 Northwest Office Building
Harrisburg, PA 17124-0001
Telephone: (717) 783-9454
FAX: (717) 787-8820
2
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIC CLUB OF SHIPPENSBURG
(OHIO SPRINGS, INC. T/A SHEETZ,
Applicant)
Petitioner
vs.
PENNSYLVANIA LIQUOR CONTROL
BOARD
Respondent.
) CIVIL DIVISION
)
)
)
)
)
)
)
)
)
STATUTORY APPEAL
CASE NO. 14-4647
CERTIFICATE OF SERVICE
I hereby certify that I am on this date serving a copy of the foregoing Answer to
Petition for Appeal from Decision of Pennsylvania Liquor Control Board via U.S.
Regular mail to the following persons:
Charles L. Caputo, Esquire
Caputo, Caputo & Regan, P.C.
204 Fifth Avenue, 5th Floor
Pittsburgh, PA 15222
Mark F. Flaherty, Esquire
Flaherty & O'Hara, P.C.
Flaherty & O'Hara, P.C.
610 Smithfield Street, Suite 300
Pittsburgh, PA 15222
September 16, 2014
Stanley J. Wolowski, Esquire
Flaherty & O'Hara, P.C.
610 Smithfield Street
Suite 300
Pittsburgh, PA 15222
Mark E. Kozar, Esquire
Flaherty & O'Hara, P.C.
610 Smithfield Street
Suite 300
Pittsburgh, PA 15222
Respectfully submitted,
RODRIGO J. DIAZ
Executive Deputy Chief Counsel
Attorney I.D. No. 62259
PENNSYLVANIA LIQUOR CONTROL
BOARD
401 Northwest Office Building
Harrisburg, PA 17124-0001
Telephone: (717) 783-9454
FAX: (717) 787-8820
THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL CLUB OF SHIPPENSBURG
(OHIO SPRINGS, INC. T/A SHEETZ,
Applicant)
Petitioner
vs.
PENNSYLVANIA LIQUOR CONTROL
BOARD
Respondent.
CIVIL DIVISION
STATUTORY APPEAL
CASE NO. 14-4647
MOTION FOR CONTINUANCE
NOW COMES the Pennsylvania Liquor Control Board ("Board"), Respondent by
and through its Counsel, Rodrigo J. Diaz, Esquire and hereby files this Motion for
Continuance and in support thereof, and avers as follows:
1 Movant, Board, is the respondent in the above -referenced matter.
2. On or about August 5, 2014 the Civic Club of Shippensburg ("Petitioner")
filed an appeal from the Board's decision of July 17, 2014, in which the Board had
approved the transfer of Restaurant Liquor License R-19377 to Ohio Springs, Inc.
("Sheetz") for use by it at 359 East King Street, Shippensburg, Pennsylvania 17257-1424.
3. On August 6, 2014 the Malt Beverage Distributors Association, Gabler's
Beverage Distributor, Inc. and PKD, Inc. (hereinafter "MBDA") filed a Petition for
Review with the Commonwealth Court from the aforementioned decision by the Board.
That Petition is docketed at No. 1352 CD 2014.
4. On September 5, 2014 the Board filed an Application for Consolidation of
appeals with the Commonwealth Court. A copy of that application (without exhibits) is
attached as Exhibit A. The Board did so to prevent the possibility that it would be
presented with two orders from two separate courts which are contrary to each other. See
Player's Bench, Inc. vs. Pennsylvania Liquor Control Board, 751 A.2d 1221 (Pa.
Cmwlth. 2000).
5. Commonwealth Court, by order dated September 8, 2014, directed that all
responses to the Application for Consolidation be filed and served by September 15,
2014. A copy of that Order is attached as Exhibit B.
6. In its answer opposing the Application for Consolidation the MBDA noted
that a hearing before this Honorable Court in the instant matter was scheduled for
September 24, 2014.
7. This was the first time the Board was put on notice that a hearing was
scheduled in this matter before this Honorable Court.
8. The Office of Chief Counsel contacted the Prothonotary's Office which
indicated that a copy of the Order which had scheduled the hearing had not been provided
to the Board because copies of the Order and the envelopes to mail the Order required by
local rule 208.3 (a) (6) had not been provided to that office.
9. The Commonwealth Court has not yet ruled on the Motion for
Consolidation.
10. The hearing in this matter should be continued until the Commonwealth
Court has ruled on the Application for Consolidation for the following reasons:
2
a. If the Commonwealth Court directs that the instant matter be
transferred to it, then this Honorable Court will no longer have
jurisdiction in this matter and there will be no need for a hearing.
b. If the Commonwealth Court transfers No. 1352 CD 2014, to this
Honorable Court, then the MBDA will become parties to this
proceeding and would therefore be entitled to participate in the
hearing on this matter.
11. Counsel for the Intervener, Ohio Springs, Inc. has been contacted and they
are in support of this Motion for Continuance. Counsel for the Civic Club of
Shippensburg has also been contacted and he would support a thirty (30) day
continuance, but not a general continuance.
WHEREFORE, respondent asks this Honorable Court to continue this matter until
the Commonwealth Court has ruled on the Motion to Consolidate the instant matter with
the matter pending before Commonwealth Court, after which the hearing could be
rescheduled, by motion of any party, if necessary.
September 17, 2014 Respectfully submitted,
RODRIGO J. DIAZ
Executive Deputy Chief Counsel
Attorney I.D. No. 62259
PENNSYLVANIA LIQUOR CONTROL
BOARD
401 Northwest Office Building
Harrisburg, PA 17124-0001
Telephone: (717) 783-9454
FAX: (717) 787-8820
3
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL CLUB OF SHIPPENSBURG
(OHIO SPRINGS, INC. T/A SHEETZ,
Applicant)
Petitioner
vs.
PENNSYLVANIA LIQUOR CONI ROL
BOARD
Respondent.
CIVIL DIVISION
STATUTORY APPEAL
CASE NO. 14-4647
CERTIFICATE OF SERVICE
I hereby certify that I am on this date serving a copy of the foregoing Motion for
Continuance and Proposed Order via UPS Overnight delivery to the following persons:
Charles L. Caputo, Esquire
Caputo, Caputo & Regan, P.C.
204 Fifth Avenue, 5th Floor
Pittsburgh, PA 15222
Mark F. Flaherty, Esquire
Flaherty & O'Hara, P.C.
Flaherty & O'Hara, P.C.
610 Smithfield Street, Suite 300
Pittsburgh, PA 15222
September 17, 2014
Stanley J. Wolowski, Esquire
Flaherty & O'Hara, P.C.
610 Smithfield Street
Suite 300
Pittsburgh, PA 15222
Mark E. Kozar, Esquire
Flaherty & O'Hara, P.C.
610 Smithfield Street
Suite 300
Pittsburgh, PA 15222
Respectfully submitted,
RODRIGO J. DIAZ
Executive Deputy Chief Counsel
Attorney I.D. No. 62259
PENNSYLVANIA LIQUOR CONTROL
BOARD
401 Northwest Office Building
Harrisburg, PA 17124-0001
Telephone: (717) 783-9454
FAX: (717) 787-8820
Exhibit A
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Malt Beverage Distributors
Association, Gabler's Beverage
Distributor, Inc. and PKD, Inc.,
Petitioners No. 1352 C.D. 2014
v.
Pennsylvania Liquor Control Board,
Respondent
APPLICATION FOR CONSOLIDATION OF APPEALS
PURSUANT TO PA.R.A.P. 513
Pennsylvania Liquor Control Board, Respondent in Case No. 1352 C.D.
2014, which is currently pending before this Honorable Court, and Respondent in
Case No. 14-4647, which is currently pending before the Court of Common Pleas
of Cumberland County, requests this Honorable Court to consolidate the appeals in
this matter for the following reasons:
1. The Petition for Review at 1352 CD 2014 is before this Honorable Court. It
is a Petition for Review, subsequently amended,' filed by Malt Beverage
Distributors Association, Gabler's Beverage Distributor, Inc. and PKD, Inc.
(hereinafter "Petitioners") from the Board's decision of July 17, 2014 which
had approved the transfer of Restaurant Liquor License No. R-19377 to
The Amended Petition corrected the proper name for one of the Petitioners.
Ohio Springs Inc. for use at premises located at 359 East King Street,
Shippensburg, Pennsylvania 15257.
2. In the matter captioned Civil (sic) Club of Shippensburg (Ohio Springs Inc.
trading as Sheetz, Applicant) vs. Pennsylvania Liquor Control Board, Case
No. 14-4647, the Civic Club of Shippensburg filed an appeal in the Court of
Common Pleas of Cumberland County from the Board decision of July 17,
2014 which had approved the transfer of Restaurant Liquor License No. R-
19377 to Ohio Springs Inc. ("Sheetz").
3. The Amended Petition for Review and appeal raise the identical issue for
judicial review, to wit, whether the approval of Sheetz's application violates
section 468 of the Liquor Code. A copy of the Amended Petition for
Review is attached as Exhibit A. A copy of the appeal is attached as Exhibit
B.
4. This Honorable Court has previously held when there is more than one
appeal in more than one court of a decision by the Board regarding a
particular liquor license, those matters must be consolidated to avoid absurd
and conflicting results. See Player's Bench, Inc. vs. Pennsylvania Liquor
2
Control Board, 751 A.2d 1221 (Pa. Cmwlth. 2000). See Also Nilo, Inc. vs.
Pennsylvania Liquor Control Board, 805 A.2d 698 (Pa. Cmwlth. 2002),
affirmed by equally divided Court, Nilo, Inc. vs. Pennsylvania Liquor
Control Board, 580 Pa. 336, 861 A.2d 248 (2004) (holding that when five
applicants vie for two licenses, the five applications must be consolidated
into a single matter).
5. Consolidation of these two matters is necessary because not doing so could
result in contrary decisions on whether the Respondent should issue the
license in question to Sheetz.
6. Charles Caputo, Esquire, who filed the appeal in Case No. 14-4647 on
behalf of the Civic Club of Shippensburg, and is one of the attorneys for the
Petitioner in No. 1352 C.D. 2014, was contacted by undersigned last week
and indicated that, notwithstanding the above, he would not be filing
anything to have the matters consolidated.
7. While the end result in Player's Bench was that this Honorable Court
remanded the matter to the Court of Common Pleas, Respondent believes
that this matter should be consolidated in this Court for the following
reasons:
a. This Honorable Court has already granted Petitioners' Motion to
Expedite this matter and consolidating these cases in Commonwealth
Court would be consistent with that Order.
b. While the Civic Club of Shippensburg would be entitled to an
additional evidentiary hearing before the Court of Common Pleas, the
only issue it is pursing in its appeal is whether Sheetz is precluded
from acquiring the license because it sells liquid fuels in close
proximity to the licensed premises. As to that issue, the facts are not
in dispute and an evidentiary record was already made at the
administrative hearing. There is therefore no need for an additional
hearing.
c. The question at issue is solely a legal one and one which this
Honorable Court has recently addressed. See WaterStreet Bev., LTD
vs Pa. Liquor Control Bd. 84 A.3d 786 (Pa. Cmwlth. 2014), Appeal
denied, Water St. Bev. L 1ll vs Pa. Liquor Control Bd., 2014 Pal
Lexis 2042 (Pa. Aug. 12, 2014). Since the Court of Common Pleas
4
cannot overrule that decision it would be in the interest of judicial
economy for this Honorable Court to address these matters. See Irem
Temple AAONMS v. Pa. Liquor Control Board, 87 A.3d 983 (Pa.
Cmwlth. 2014) (In which this Honorable Court consolidated five
appeals involving the same location into a single matter for purposes
of judicial economy).
8. In that Rule 513 of the Rules of Appellant Procedure contemplates
consolidation of appeals through agreement of the parties, undersigned has
contacted counsel for the parties included. Stanley J. Wolowski, Esquire,
has indicated on behalf of Ohio Springs, Inc. that he concurs with this
Application. Joshua John Voss, Esquire, on behalf of Petitioners, has
indicated that he does nat concur with this Application. Charles L. Caputo,
Esquire, who represents the Civic Club of Shippensburg and is also listed as
counsel for Petitioners has indicated that he does not concur with this
Application.
Wherefore, Pennsylvania Liquor Control Board requests this Honorable Court
to consolidate these two (2) matters by directing the Court of Common Pleas of
Cumberland County to transfer Case No. 14-4647 to this Honorable Court. In the
5
alternative, the Pennsylvania Liquor Control Board requests this Honorable Court
to remand Case No. 1352 C.D. 2014 to the Court of Common Pleas of Cumberland
County for consolidation with Case No. 14-4647.
Respectfully submitted,
RODRIG
EXECUTIVE DEPUTY CHIEF COUNSEL
Attorney ID No. 62259
FAITH S. DIEHL
CHIEF COUNSEL
PENNSYLVANIA LIQUOR CONTROL BOARD
Office of Chief Counsel
401 Northwest Office Building
Harrisburg, PA 17124-0001
Telephone: (717) 783-9454
Fax: (717) 787-8820
6
Exhibit B
SEP/08/2014/M0N 12:56 PM
FAX No.
IN THB. COMMONWEALTH COURT OF PENNSYLV1A
Malt Beverage Distributors
Association, Gabler's Beverage
Distributor, Inc. and Plc.D, Inc.,
Petitioners
v.
Pennsylvania Liquor Control Board,
Respondent No. 1352 C.D. 2014
ORDER
P. 002/002
NOW, September 8, 2014, any response to the Application. for Consolidation
of Appeals pursuant to Pa.R.A.P. 513 filed by the Pennsylvania Liquor Control
Board shall be filed and served on or before September 15, 2014.
Dan Pellegrini, Preside . udge
Miffed tom the Record
SEP 2014
and Order Exit
Pennsylvania
LIQUOR CONTROL BOARD
September 17, 2014
David D. Buell
Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013
VIA UPS OVERNIGHT
RE: Civil Club of Shippensburg (Ohio Springs, Inc., t/a Sheetz)
v.
Pennsylvania Liquor Control Board
Docket No. 14-4647
License No. R-19377/LID 67077
Dear Mr. Buell:
I am enclosing an original and two (2) copies of the Motion for Continuance and
Proposed Order filed by Respondent, Pennsylvania Liquor Control Board, in the above -
referenced matter. I am also enclosing additional copies of the Proposed Order and
stamped envelopes as required by Rule 208.3(a)(6).
Please file the original of record and kindly return a date stamped copy in the self-
addressed stamped envelope provided.
Thank you in advance for your assistance regarding this matter. If you have any
questions with respect to the foregoing, please contact me at (717) 783-9454.
Very truly yours,
RODRIGO JeDIAZ
EXECUTIVE DEPUTY CHIEF COUNSEL
Enclosure
cc: Charles L. Caputo, Esq. (w/enclosures via UPS Overnight )
Mark F. Flaherty, Esq. (w/enclosures via UPS Overnight )
Stanley J. Wolowski, Esq. (w/enclosures via UPS Overnight )
Mark E. Kozar, Esq. (w/enclosures via UPS Overnight )
Chief Counsel
401 Northwest Office Building 1 Harrisburg, PA 17124 1 717.783.9454 1 F 717.787.8820 1 Icb.state.pa.us
PLCB-1039 08/14
THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL CLUB OF SHIPPENSBURG
(OHIO SPRINGS, INC. T/A SHEETZ,
Applicant)
Petitioner
vs.
PENNSYLVANIA LIQUOR CONTROL
BOARD
Respondent.
CIVIL DIVISION
STATUTORY
CASE NO. 14-
APPEAcl,C.
4647
PRAECIPE TO WITHDRAW MOTION FOR CONTINUANCE
Please withdraw the Motion for Continuance previously filed by the Pennsylvania Liquor
Control Board.
September 18, 2014 Respectfully submitted,
RODRIGO J. DIAZ
Executive Deputy Chief Counsel
Attorney I.D. No. 62259
PENNSYLVANIA LIQUOR CONTROL BOARD
401 Northwest Office Building
Harrisburg, PA 17124-0001
Telephone: (717) 783-9454
FAX: (717) 787-8820
CIVIC CLUB OF SHIPPENSBURG
(OHIO SPRINGS, INC. T/A
SHEETZ, applicant)
Petitioner
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v. : Case No: 14-4647 CIVIL
PENNSYLVANIA LIQUOR CONTROL :
BOARD,
Respondent.
IN RE: PETITIONERS MOTION FOR CONTINUANCE
ORDER
AND NOW, this 23rd day of September, 2014, the within Motion for Continuance is
DENIED with the understanding that, at the hearing, the Court will entertain a request by the
Petitioner to keep the record open for the purpose of adducing the remaining testimony which it
regards as essential.
✓Rodrigo J. Diaz, Esquire
Counsel for Respondent
BY THE COURT,
.1Glark Flaherty, Esquire
-Stanley Wolowski, Esquire
,IVIark E. Kozar, Esquire
•e`ounsel for Applicant r rri •
cc
�Cliarles L. Caputo, Esquire
Counsel for Petitioner
"." CD
:rim >E-
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e op I ,�I1 ) f
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•
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIC CLUB OF SHIPPENSBURG
(OHIO SPRINGS, INC. T/A SHEETZ,
Applicant)
Petitioner,
vs.
PENNSYLVANIA LIQUOR CONTROL
BOARD
Respondent.
CIVIL DIVISION
STATUTORY APPEAL
CASE NO. 14-4647
MOTION FOR CONTINUANCE
c:
AND, NOW, comes the Petitioner, CIVIC CLUB OF SHIPPENSBURG, by and
through its counsel Charles L. Caputo, Esq. of Caputo, Caputo & Regan, P.C., and
presents the within Motion for Continuance and, in support thereof, avers as follows:
1. On or about August 5, 2014 the Civic Club of Shippensburg ("Petitioner")
filed an appeal from the July 17, 2014 decision of the Pennsylvania Liquor Control Board
(the "Board"), which approved a liquor license to Ohio Springs, Inc. ("Sheetz") for use at
premises located at 359 E. King Street, Shippensburg, PA 17257-1424 (the "Premises").
2. In response to the aforesaid filing, and by Order dated August 12, 2014,
this Honorable Court scheduled a hearing for September 24, 2014, at 10:30 a.m. in front
of the Honorable Judge Hess.
3. By Order dated August 13, 2014, this Court granted intervenor status to
Sheetz.
1
4. On September 17, 2014, the Board filed a Motion for Continuance in this
matter asking the Court to continue the matter generally pending the Commonwealth
Court's decision on a petition for consolidation filed by the Board in the Commonwealth
Court.
5. Both Sheetz and the Civic Club consented to the Board's request for a
continuance in this matter.
6. On September 18, 2014, the Board notified counsel for the Civic Club
that it was withdrawing its request for a continuance because the Commonwealth Court
denied its petition for consolidation.
7. A witnesses planning to appear and testify in support of the Civic Club is
unable to attend the hearing scheduled for September 24, 2014. We view this witness as
essential to our case.
8. Counsel for the Board has been contacted and would not oppose a
continuance, but would ask that the hearing be rescheduled as soon as possible. Counsel
for Sheetz has been contacted and will not consent to the continuance.
9. This is Petitioner's first request for a continuance in this matter. Petitioner
apologizes for the tardiness of this request, but we have been diligently attempting to get
our witnesses and evidence in order after having previously consented to a continuance in
this case. The Petitioner respectfully suggests that a short continuance of this hearing
will not prejudice any party.
10. Petitioner requests that the hearing not be rescheduled between October 10
and October 20, 2014 as the President of the Civic Club will be out of town during these
dates.
2
WHEREFORE, the Petitioner respectfully requests this Honorable Court to enter
an Order in the form attached hereto continuing the hearing scheduled for September 24,
2014, to the next available date after October 1, 2014.
Dated: September 23, 2014
By:
Charles L. Caputo, Esquire
Pa. I.D. No. 86058
Respectfully submitted,
Caputo, Caputo & Regan, P.C.
Buhl Building, 5th Floor
204 Fifth Avenue
Pittsburgh, PA 15222
Tel: 412.325.0693
Fax:412.690.2350
Counsel for Civic Club of Shippensburg
3
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the within Motion for Continuance
was served upon the parties listed below by facsimile and overnight mail, on this 23`d day
of September, 2014.
Rodrigo J. Diaz, Esquire
Pennsylvania Liquor Control Board
Office of Chief Counsel
401 Northwest Office Building
Capital and Forster Streets
Harrisburg, PA 17124-0001
Mark Flaherty, Esquire
Stanley Wolowski, Esquire
Mark E. Kozar, Esquire
FLAHERTY & O'HARA, PC
610 Smithfield Street
Suite 300
Pittsburgh, PA 15222
5
By:
Charles L. .puto, Esquire
Counsel for Petitioner
Civic Club of Shippensburg
'FILED:OFFICE
OF THE PROTHOH01t, :
2Diti SEP 29 10: j
IN THE COURT;�,;'Al-110F" 'S(OF CUMBERLAND COUNTY
"PE M,VANIA
CIVIC CLUB OF SHIPPENSBURG )
CIVIL DIVISION
)
STATUTORY APPEAL
Petitioner/Protestant, )
) CASE NO. 14-4647
)
v. ) MOTION TO
VACATE AUTOMATIC
SUPERSEDEAS
)
) Filed on behalf of
) Intervenor,
PENNSYLVANIA LIQUOR CONTROL BOARD) Ohio Springs, Inc. t/a
) Sheetz
Respondent,
)
) Counsel of Record for this
)
)
) Mark F. Flaherty, Esq.
) Pa. I.D. #46596
v. )
) Stanley J. Wolowski, Esq.
) Pa. I.D. # 32978
)
)
) Pa. I.D. No. 78541
Intervenor )
)
) Flaherty & O'Hara, P.C.
) 610 Smithfield Street
) Suite 300
) Pittsburgh, PA 15212
) 412-456-2001
Party
OHIO SPRINGS, INC. T/A SHEETZ
(F1107790.1)
Mark E. Kozar, Esq.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION, STATUTORY APPEAL
CIVIC CLUB OF SHIPPENSBURG
Petitioner/Protestant,
CASE NO. 14-4647
v.
PENNSYLVANIA LIQUOR CONTROL
BOARD
Respondent,
v.
OHIO SPRINGS, INC. T/A SHEETZ
Intervenor.
MOTION TO VACATE AUTOMATIC SUPERSEDEAS
AND NOW, comes Intervenor OHIO SPRINGS, INC. t/a SHEETZ ("Sheetz"),
pursuant to Local Rule 208 by and through its counsel, Mark F. Flaherty, Stanley J.
Wolowski, and Mark E. Kozar, and respectfully requests this Court vacate the
automatic supersedeas that arose as a result of an appeal filed by the Civic Club of
Shippensburg ("Club") at the above referenced case number. In the support of this
motion Sheetz states the following:
Procedural History
1. This matter arose when Sheetz applied to the Borough of Shippensburg
for the intermunicipal transfer of a restaurant liquor license to its new
(F1107790.1)
facility that it was building in Shippensburg; Sheetz would sell beer,
primarily for take-out, as a convenience for its customers and as a
complement to its extensive made-to-order food offerings. Sheetz would
not sell wine or distilled spirits.
2. On July 17, 2012 the Borough of Shippensburg approved the inter-
municipal transfer of Restaurant Liquor License No. R-19377 into
Shippensburg Borough after an advertised public hearing in which
testimony was heard for and against the transfer including from the
Borough's Chief of Police.
3. On July 17, 2012 the Borough Council of Shippensburg adopted
Resolution No. 12-015 approving said transfer into Shippensburg
Borough. In that resolution the Borough Council specifically stated the
liquor license transfer would not be detrimental to the welfare, health,
peace, and morals of the Borough of Shippensburg or its inhabitants.
4. After receiving Borough approval, Sheetz, on July 27, 2012, filed for the
transfer of the liquor license with the Pennsylvania Liquor Control Board
("Board") thereafter the Club filed a protest to the transfer.
5. On January 29, 2014 the Commonwealth Court in Water Street
Beverage, LTD. v. Pennsylvania Liquor Control Bd., held that the term
"location" as used in Sections 432 and 436 of the Liquor Code referred
to the particular area of the licensed premise. 84 A.3d 786, 796-97 (Pa.
Commw. Ct. 2014).
{F1107790.1} 2
6. In addition, the Commonwealth Court did not address Water Street's
arguments relating to Section 468(a)(3) of the Liquor Code because
Water Street had waived such argument by failing to make specific
references to Section 468(a)(3) in its petition to intervene. Water Street,
84 A.3d at 794.
7. Thereafter, on February 20, 2014, Water Street filed a Petition for
Allowance of Appeal with the Pennsylvania Supreme Court asking the
Court to review the decision of the Commonwealth Court.
8. On March 13, 2014 the Malt Beverage Distributor's Association
("MBDA") and the intervening beer distributors in this Sheetz case filed
an Application for Extraordinary Relief with the Pennsylvania Supreme
Court.
9. Therein the MBDA and intervening beer distributors urged the Supreme
Court to exercise its King's Bench power and take the Sheetz case out of
the Board's hands and to determine the meaning of location, place, and
property.
10. On March 18, 2014 and March 19, 2014 the Board held hearings
regarding the double inter -municipal transfer of Restaurant License R-
19377 to Sheetz at 359 East King Street, Shippensburg, PA 17257. At
this hearing both Sheetz and the Club, along with other protestants
presented testimony and evidence on behalf of their positions.
(F1107790.1) 3
11. On May 21, 2014 the Supreme Court denied the MBDA's Application
for Extraordinary Relief in this matter.
12. On July 17, 2014 the Board approved a double inter -municipal transfer
of Restaurant License R-19377 to Sheetz at 359 East King Street,
Shippensburg, PA 17257, notwithstanding the Club's protests and
testimony.
13. On August 5, 2014 the Club filed an appeal from the decision of the
Board to this Court, pursuant to Section 464 of the Liquor Code. 47 P.S.
§ 4-464.
14. On August 6, 2014 the MBDA and beer distributor intervenors filed a
Petition for Review in the Commonwealth Court arguing that the terms
"location," "place," and "property" contained in sections 404 and
468(a)(3) prohibit the Board from approving this transfer of a liquor
license to Sheetz at the Shippensburg location. The Commonwealth
Court on September 18, 2014 stayed that petition for review pending the
decision of this Court.
15. On August 12, 2014, the Supreme Court denied Water Street's Petition
for Allowance of Appeal letting stand the Commonwealth Court
decision. See attached Supreme Court Order.
The Automatic Supersedeas Should be Vacated
(F 1107790.1) 4
16. Under Section 464 of the Liquor Code the appeal filed by the Club acts
as an automatic supersedeas. Section 464 provides that "said appeal shall
act as a supersedeas unless upon sufficient cause shown the court shall
determine otherwise." 47 P.S. § 4-464. This automatic supersedeas has
the effect of denying Sheetz the right to serve alcohol pursuant to the
license approved by the Board until the pending appeal has been decided.
17. The party who seeks to vacate an automatic supersedeas has the burden
of proving that it will be irreparably harmed if the automatic supersedeas
is not vacated. Elizabeth Forward Sch. Dist. v. Pennsylvania Labor
Relations Bd., 149 Pa. Cmwlth. 235, 241, 613 A.2d 68, 70 (1992).
18. The Commonwealth Court explained that to prevail on a motion to
vacate an automatic supersedeas, the petitioner must establish
(1) that he is likely to prevail on the merits; (2) that
without the requested relief he will suffer irreparable
injury; and (3) that the removal of the automatic
supersedeas will not substantially harm other interested
parties or adversely affect the public interest.
Rickert v. Latimore Twp., 960 A.2d 912, 923 (Pa. Cmwlth. 2008) (citing
Solano v. Pennsylvania Bd. of Prob. & Parole, 884 A.2d 943, 944 (Pa.
Cmwlth. 2005)).
19. The Liquor Control Board and Sheetz are likely to prevail on the merits
for the following reasons:
a. The Board has interpreted place, property, and location to mean the
licensed premises. The Board's interpretation of the Liquor Code is
{F1107790.1 } 5
entitled to deference unless clearly erroneous. St. Rd. Bar & Grille,
Inc. v. Pennsylvania Control Bd., 583 Pa. 72, 84, 876 A.2d 246, 353
(2005). The Board's interpretation in this matter has been upheld by
the Commonwealth Court in Water Street Beverage, Ltd. v.
Pennsylvania Liquor Control Bd., 84 A.3d 786 (Pa. Cmwlth. 2014),
petition for allowance of appeal denied, No. 104 MAL 2014, 2014
WL 3931117 (Pa. 2014).
b. Contrary to Petitioner's assertion, there is no legislative history with
regard to Sections 404 and 468(a)(3) of the Liquor Code. Petitioner
has not cited to or referred to any legislative comments or debate
regarding the purpose of these provisions when they were enacted or
amended. Furthermore, Petitioner's argument that the General
Assembly intended the liquid fuel prohibition in the Liquor Code to
be interpreted very broadly was rejected in the Commonwealth
Court's Water Street decision and implicitly rejected by the Supreme
Court when it denied to take the case.
c. If the Pennsylvania Supreme Court had disagreed with the Board's
interpretation of "location" as affirmed by the Commonwealth Court
in Water Street, it would have granted the MBDA's Petition for
Allowance of Appeal. Moreover, the Supreme Court denied the
MBDA's Application for Extraordinary Relief in this case, wherein
the MBDA requested the Supreme Court to take the case away from
{F1107790 1 } 6
the Board and to interpret the terms location, place, and property.
The Supreme Court in denying the Petition for Allowance of Appeal
and the Application for Extraordinary Relief has left the
Commonwealth Court's decision in Water Street as precedent.
Water Street Beverage, Ltd. v. Pennsylvania Liquor Control Bd., 84
A.3d 786 (Pa. Cmwlth. 2014), appeal denied, No. 104 MAL 2014,
2014 WL 3931117 (Pa. Aug. 12, 2014).
d. Sections 404 and 468(a)(3) refer to the same concept of the transfer
of a liquor license to a proposed licensed premises in proximity to
gas pumps. Also, under Section 404, the legislature effectively
defines "place" as the licensed premises.' Consequently, the Code
sections must be read in paria materia. 1 Pa.C.S.A. § 1932. Any
other reading of the Code would lead to absurd results. For there to
be any alternative reading of the Liquor Code, the Board would have
to de -license any licensee who is on the same tract of land where
liquid fuels are sold. Forexample, the Board would be required to
de -license any restaurant selling alcohol located in a strip mall where
a gas station is also a tenant.
' In Section 404 of the Liquor Code 47 P.S. § 4-404 the legislature stated: "That in case of any new
license or the transfer of any license to a new location...the Board may, in its discretion, grant or refuse
such new license or transfer if such place proposed to be licensed is within three hundred feet of any
church, hospital, charitable institution, school or public playground, or if such new license, transfer or
extension is applied for a place which is within two hundred feet of any other premises which is licensed
by the Board." (emphasis added).
{F1107790.1 } 7
e. Petitioner may try to argue that its interpretation of place, property,
and location would not necessarily lead to the catastrophic and
absurd result of requiring the Board to de-license restaurants locating
in malls and commercial developments where there are also gas
pumps. Petitioner would argue that in those situations, even though
there is one tract of land and one owner, there are separate tenants
and that factor mitigates against a finding of co-locations. However,
in the instant case there are two separate tenants, Ohio Spings, Inc.
who uses the licensed premises for its restaurant, and Sheetz, Inc.
who uses its site for the sale of liquid fuels.
f. Indeed, not to define the terms location, place, and property in pari
materia under the Liquor Code would lead to the further absurd result
that the Board could grant a new license to a location, i.e. licensed
premises, near the sale of liquid fuels, but the Board could not
approve the transfer of that same license to another person pursuant
to section 468(a)(3) because liquid fuels are sold at the same site.
g. The Board's decision is not one that is sanctioning gas stations to sell
alcohol. The Board's decision merely grants a license to an applicant
that meets all requirements for a restaurant liquor license pursuant to
the Liquor Code and that does not sell fuel or conduct any fuel
related activities on the licensed premises. The Supreme Court's
decision in Malt Beverage Dist. Ass 'n. v. Pennsylvania Liquor
. {F1107790.1} 8
Control Bd. ("Wegmans") supports the Board's decision in this case.
8 A.3d 885 (Pa. 2010). In Wegmans the MBDA argued that the
Board improperly issued a license to Wegmans because the
legislature had not approved liquor licenses for grocery stores and the
Wegman's restaurant and Wegman's grocery store were one in the
same in that they were in the same building and were both owned
and operated by Wegmans. However, the Supreme Court rejected the
MBDA's argument and held that because the restaurant was
separated physically and operationally from the grocery store, the
Board properly approved the license. Wegmans, 8 A.3d at 895. Here,
the approved licensed restaurant and the gas pumps are also
separated physically and operationally as concluded by the Board
after two days of testimony.
20. With regard to the other factor this Court must look at in lifting the
automatic supersedeas, Sheetz is being irreparably harmed by the
automatic supersedeas. After approval of the license by the Board,
Sheetz began beer sales at the Shippensburg restaurant on July 24, 2014.
On August 6, 2014 the Board informed Sheetz it must cease beer sales.
Each and every day the supersedeas is in place Sheetz is unable to
exercise its rights and privileges under its restaurant liquor license.
21. Moreover, the removal of the supersedeas will not substantially harm
other interested parties or adversely affect the public interest. Both the
(F1107790.1) 9
Borough of Shippensburg, the municipal authority most intimately
attuned to the public interest of the residents of Shippensburg, and the
Board both found that a liquor license at the Sheetz restaurant in
Shippensburg would not adversely affect the welfare, health, peace and
morals of the Borough of Shippensburg or its residents.
22. The Board concurs in this request by Sheetz to vacate the automatic
supersedeas.
WHEREFORE, Ohio Springs, Inc. t/a Sheetz respectfully requests that this Honorable
Court vacate the automatic supersedeas as a result of the appeal filed by the Civic Club
of Shippensburg.
{F1107790.1)
10
Respectfully Sub i
By:
Mark E. Kozar, Esquire
Pa. I.D. No. 78541
Mark F. Flaherty, Esquire
Pa. I.D. No. 46596
Stanley J. Wolowski, Esquire
Pa. I.D. No. 32978
Flaherty & O'Hara, P.C.
610 Smithfield Street, Suite 300
Pittsburgh, PA 15222
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the within MOTION TO VACATE
Automatic SUPERSEDEAS was forwarded to the parties and counsel listed below by
U.S. Mail, postage prepaid, this Z()day of September, 2014:
Rodrigo J. Diaz, Esq.
Pennsylvania Liquor Control Board
PA Liquor Control Board
401 NW Ofc Bldg
Harrisburg, PA 17124-0001
(717) 783-9454
Commonwealth of Pennsylvania
Pennsylvania Liquor Control Board
Bureau of Licensing
Northwest Office Building, Room 108
Capital and Forster Streets
Harrisburg, PA 17124-0001
Charles L. Caputo, Esq.
Caputo, Caputo & Regan, P.C.
204 5th Ave, Floor 5
Pittsburgh, PA 15222-2706
(412) 325-0693
Nicholas A. Miller, Esq.
Caputo, Caputo & Regan, P.C.
204 5th Ave, Floor 5
Pittsburgh, PA 15222-2706
{F1107790.1 }
ark ' . Kozar, E iinre
Counsel for Intervenor
FiLEO-OFFICE
THE PROTHONOTAi'f'
2014 OCT —6 El I:
CUMCERLAND COUNTY
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIC CLUB OF SHIPPENSBURG,
Petitioner,
vs.
PENNSYLVANIA LIQUOR CONTROL
BOARD,
Respondent,
vs.
OHIO SPRINGS, INC. t/a SHEETZ,
Intervenor.
CIVIL DIVISION
STATUTORY APPEAL
CASE NO. 14-4647
PETITIONER'S RESPONSE TO
INTERVENOR'S MOTION TO
VACATE AUTOMATIC
SUPERSEDEAS
Filed on Behalf of Petitioner
CIVIC CLUB OF SHIPPENSBURG
Counsel of Record for this Party:
Charles L. Caputo, Esq.
PA. I.D. #86058
Nicholas A. Miller, Esq.
Pa. I.D. #204141
CAPUTO, CAPUTO & REGAN, PC
The B-uhl Building, 5th Floor _
204 Fifth Avenue
Pittsburgh, PA 15222
412-690-0300
412-690-2350 (facsimile)
info@caputolawoffice.com
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIC CLUB OF SHIPPENSBURG,
Petitioner,
vs.
PENNSYLVANIA LIQUOR CONTROL
BOARD
Respondent,
vs.
OHIO SPRINGS, NC. t/a SHEETZ,
Intervenor.
CIVIL DIVISION
STATUTORY APPEAL
CASE NO. 14-4647
PETITIONER'S RESPONSE TO INIERVENOR'S MOTION TO
VACATE AUTOMATIC SUPERSEDEAS
AND, NOW, comes the Petitioner, CIVIC CLUB OF SHIPPENSBURG ("Petitioner"),
by and through its counsel Charles L. Caputo, Esq. of Caputo, Caputo & Regan, P.C., and files
this Response to Intervenor's Motion to Vacate Automatic Supersedeas and, in support thereof,
avers as follows:
1. DENIED. Petitioner is without knowledge or infoimation sufficient to form a belief
as to the truth of the allegations contained in paragraph 1 of Intervenor's Motion to Vacate
Automatic Supersedeas (the "Motion") and, therefore, these allegations are denied.
2. ADMITTED. Although the Borough ultimately approved the inter -municipal transfer
of the liquor license to Sheetz, the issue was the subject of significant debate among the
members of Borough Council and the transcript of these proceedings (available on the
Shippensburg Borough website or from Petitioner upon request) indicates the Borough Council
was misinformed of the appropriate standard when considering a request for inter -municipal
transfer of a liquor license. The Borough Council also had concerns about the cost of an appeal
if the liquor license was denied at the inter -municipal phase. See Councilman Brenzie Comment,
Transcript, P. 64 ("most of the evidence is just us seeing it and concerns which to us are fact but
aren't part of the evidence, they would probably end up getting it [the License] anyway.")
3. ADMITTED.
4. ADMITTED.
5. The averments in paragraph 5 of Intervenor's Motion constitute a conclusion of law to
which no response is required. By way of further response, the Commonwealth Court's Opinion
in Water Street is a document which speaks for itself.
6. The averments in paragraph 6 of Intervenor's Motion constitute a conclusion of law to
which no response is required. By way of further response, the Commonwealth Court's Opinion
in Water Street is a document which speaks for itself. To the extent further response in required,
it is admitted that the Commonwealth Court in Water Street did not address arguments related to
Section 468(a)(3) of the Liquor Code.
7. ADMITTED.
8. ADMITTED.
9. The averments in paragraph 9 of Intervenor's Motion constitute a conclusion of law to
which no response is required. By way of further response, the Application for Extraordinary
Relief filed by other intervening parties with the Pennsylvania Supreme Court is a document
which speaks for itself.
10. ADMITTED.
11. ADMITTED.
12. ADMITTED.
13. ADMITTED.
14. ADMITTED IN PART. It is admitted that the MBDA and other beer distributors
filed a Petition for Review and that such action has been stayed in the Commonwealth Court.
The remaining averments in paragraph 14 of Intervenor's Motion constitute conclusions of law
to which no response is required. By way of further response, the filings of these other parties
and the Commonwealth Court are documents which speak for themselves.
15. ADMITTED.
16. ADMITTED IN PART. It is admitted that Petitioner's appeal acts as an automatic
supersedeas under section 464 of the Liquor Code. The remaining averments in paragraph 16 of
Intervenor's Motion constitute conclusions of law to which no response is required. By way of
further response, section 464 of the Liquor Code is a document which speaks for itself.
17. The averments in paragraph 17 of Intervenor's Motion constitute a conclusion of law
to which no response is required. To the extent a response is required, Petitioner agrees Sheetz
has the burden of proving the automatic supersedeas should be vacated in this matter.
18. The averments in paragraph 18 of Intervenor's Motion constitute a conclusion of law
to which no response is required.
19. The averments in paragraph 19 of Intervenor's Motion constitute a conclusion of law
to which no response is required. To the extent a response is required, it is denied that the Board
and Sheetz are likely to prevail on the merits. Sheetz has the burden of proof in this matter and
they have failed to cite to any cases which are analogous to this case or which support the relief
requested herein.
i
a. The averments in paragraph 19a of Intervenor's Motion constitute a conclusion
of law to which no response is required. To the extent a response is required, the Board's
interpretation of the Liquor Code is not entitled to deference in this case because it conflicts with
the express provisions of the statute. Despite the strong deference standard, courts are not bound
by an agency's interpretation when it conflicts with the governing statute. See Bureau of Liquor
Control Enforcement v. American Serbian Club, 750 A.2d 405, 408 (Pa. Commw. Ct. 2000)
(trial court's reversal of the Board was affirmed because Board's interpretation of section 5.83 of
the regulations conflicted with the Liquor Code and lead to an absurd result). Our Supreme
Court has noted "[w]hile courts traditionally accord the interpretation of the agency charged with
administration of [an] act some deference, the meaning of a statute is essentially a question of
law for the court ..." Popowsky v. Pa. PUC, 910 A.2d 38, 53 (Pa. 2006). The Board is not
entitled to deference in this case because its interpretation conflicts with the explicit and
unambiguous provisions of the Liquor Code; and the only reasonable interpretation of the statute
requires refusal of the Sheetz application. Contrary to Intervenor's averments, the
Commonwealth Court has not affirmed the Board's interpretation of Section 468(a)(3) of the
Liquor Code. See Intervenor's Motion, paragraph 6.
b. The averments in paragraph 19b of Intervenor's Motion constitute conclusions
of law to which no response is required. To the extent a response is required, the core principals
of the Liquor Code are the restrain the sale of alcohol. See 104(a) of the Liquor Code, which
provides:
Interpretation of Act. (a) This act shall be deemed an exercise of the police
power of the Commonwealth for the protection of the public welfare,
health, peace and morals of the people of the Commonwealth and to
prohibit forever the open saloon, and all of the provisions of this act shall
be liberally construed for the accomplishment of this purpose.
Petitioner's interpretation is consistent with these overarching principals of the Liquor Code.
The interpretation argued by Sheetz is not.
c. The averments in paragraph 19c of Intervenor's Motion constitute conclusions
of law to which no response is required. To the extent a response is required, Intervenor admits
in paragraph 6 of its Motion that the appellate courts have not interpreted section 468(a)(3) of the
Liquor Code, which is precisely the provision the Board's own hearing examiner concluded
mandates denial of the Sheetz application in this case. Intervenor has also attempted to speculate
as to the Supreme Court's reasons for denying review in other cases, which in no way supports
Intervenor's request to vacate the automatic supersedeas or assists Sheetz in carrying its heavy
burden in connection with this Motion.
d. The averments in paragraph 19d of Intervenor's Motion constitute conclusions
of law to which no response is required. To the extent a response is required, the Board's
Hearing Examiner conducted a reasoned and lengthy analysis on these issues — including relying
on the common and approved usage of the terms "place", "property" and "location" - and
concluded the Sheetz application should have been refused. See Recommended Op. at 117-126,
146. There is no way Sheetz can meet its burden of proving it is likely to prevail on the merits
when the Hearing Officer who presided over the two (2) day trial in this case recommended
denying the application.
e. The averments in paragraph 19e of Intervenor's Motion constitute speculation
and conclusions of law to which no response is required. To the extent a response is required,
Petitioner's interpretation will not lead to catastrophic consequences and there is absolutely no
evidence to support that allegation in the record. The argument proffered by Sheetz that there
are two separate tenants in this case is a legal facade. Sheetz does not even dispute that these
entities are intimately related (Sheetz Inc. is the sole shareholder of Ohio Springs, Inc.) and the
only reason Sheetz structured the "leasehold interests" in this manner is to attempt to circumvent
the express prohibitions of the Liquor Code. The Board's Hearing Examiner noted the
continuity of this business model with the Sheetz logo prominently displayed throughout the
property. Sheetz admits that these businesses are all related and it does not care where a
customer purchases certain items from because it all goes to the same place.
f. The averments in paragraph 19f of Intervenor's Motion constitute speculation
and conclusions of law to which no response is required. To the extent a response is required, it
is denied Petitioner's interpretation will lead to absurd results. Petitioner is simply asking the
Court to enforce the express terms of the statute. The other parties to this action are the ones
trying to fabricate a method to circumvent the statute and intent of the General Assembly, which
is to prohibit alcohol sales at places, properties and locations which sell gasoline. Sheetz is one
of the largest gas retailers in the region and the only absurdity in this case is the claim that Sheetz
does not sell gasoline from its Shippensburg place of business.
g. The averments in paragraph 19g of Intervenor's Motion constitute conclusions
of law to which no response is required. To the extent a response is required, it is denied that the
Wegmans case supports Intervenor's arguments. The Wegmans case dealt with a licensed
business that had an interconnection with a grocery store. A licensee is not prohibited from
selling groceries under the Liquor Code so the applicant in Wegmans did not have the same legal
hurdle that Sheetz faces in this case. A licensee is expressly prohibited through multiple sections
of the Liquor Code from selling gasoline.
20. DENIED. The averments in paragraph 20 of Intervenor's Motion constitute
conclusions of law to which no response is required. By way of further response, it is denied that
Sheetz is being irreparably harmed by the automatic supersedeas. The holding of a license is a
privilege between the Board and the licensee. See 47 P.S. § 4-468(d). Sheetz's rights and
privileges with respect to the License are subject to the provisions of the Liquor Code, which
expressly provide for the automatic supersedeas under these circumstances. Additionally, Sheetz
has operated its gas station, food service and convenience store business at the Shippensburg
location for over thirty (30) years without a liquor license and without irreparable harm for lack
of one. Denying the Sheetz motion will result in preserving the status quo which has existed for
decades. Gas stations in Pennsylvania are not legally allowed to sell beer. This reality dating
back to the era of prohibition (and solidified as recently as 1987 when the Liquor Code was
amended to make it more restrictive) should not be ignored and changed via a motion.
21. DENTED. The averments in paragraph 21 of Intervenor's Motion constitute a
conclusion of law to which no response is required. To the extent a response is required, in
addition to Petitioner, the Board has concluded that at least four (4) other interested parties will
be directly aggrieved by the Board's decision to approve a liquor license to Sheetz. See Board's
Order dated July 17, 2014. Three (3) of those other interested parties have appeals pending in
the Commonwealth Court. Petitioner ncorporates its response to paragraph 2 of the Board's
Motion above. To the contrary, members of the Borough Council were concerned about
approving a license to Sheetz. The Chief of Police in Shippensburg has grave concerns about
Sheetz selling alcoholic beverages and he testified extensively at the Board's administrative
hearing. Additionally, vacating the automatic supersedeas at this stage in the proceedings would
be contrary to the core principals of the Liquor Code, which are the restrain the sale of alcohol.
See 104(a) of the Liquor Code, supra.
22. DENIED. Petitioner is without knowledge or information sufficient to form a belief
as to the truth of the allegations contained in paragraph 22 of Intervenor's Motion and, therefore,
these allegations are denied. By way of further response, and for the reasons set forth herein,
Petitioner does not concur with Intervenor's request to vacate the automatic supersedeas.
WHEREFORE, the Civic Club of Shippensburg, respectfully requests that this Honorable
Court deny the Intervenor's Motion to Vacate Automatic Supersedeas, thus maintaining the
status quo.
Respectfully Submitted,
Charles L. Caputo, Esquire
Pa. I.D. No. 86058
Caputo, Caputo & Regan, P.C.
Buhl Building, 5th Floor
204 Fifth Avenue
Pittsburgh, PA 15222
412-690-0300
info@caputolawoffice. corn
Attorneys for Petitioner,
Civic Club of Shippensburg
CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of the within Petitioner's Response to
Respondent's Motion to Vacate Automatic Supersedeas were forwarded to the parties and
counsel listed below by facsimile and U.S. Mail, postage prepaid, this 3rd day of October, 2014.
Rodrigo J. Diaz, Esquire
Pennsylvania Liquor Control Board
Office of Chief Counsel
401 Northwest Office Building
Capital and Forster Streets
Harrisburg, PA 17124-0001
Mark Flaherty, Esquire
Stanley Wolowski, Esquire
Mark E. Kozar, Esquire
FLAHERTY & O'HARA, PC
610 Smithfield Street
Suite 300
Pittsburgh, PA 15222
Charl s L. Caputo, Esquire
Counsel for Petitioner
THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION, STATUTORY APPEAL
CIVIL CLUB OF SHIPPENSBURG
(OHIO SPRINGS, INC. T/A SHEETZ,
Applicant)
Petitioner
VS.
PENNSYLVANIA LIQUOR CONTROL
BOARD
Respondent.
CASE NO. 14-4647
ANSWER TO MOTION TO VACATE AUTOMATIC SUPERSEDEAS
AND NOW comes Respondent, Pennsylvania Liquor Control Board ("Board")
through its counsel, Rodrigo J. Diaz, and files this response to the Motion to Vacate
Automatic Supersedeas, filed by Intervener, Ohio Springs, Inc., t/a Sheetz ("Sheetz"),
and avers the following:
Procedural History
1. Admitted in part; Denied in Part. It is admitted that Sheetz has applied for
the transfer of Restaurant Liquor License No. R-19377. Such license would authorize
Sheetz to sell beer, wine and spirits at its premises. After reasonable investigation, the
Board is unaware of which of these products Sheetz will actually sell, so the remaining
portion of this paragraph is denied.
2. Admitted.
3. Admitted.
4. Admitted.
5. Paragragh 5 states a conclusion of law for which no further response is
required. By way of further answer, the Commonwealth Court specifically held that the
Board's interpretation of the Liquor Code's prohibition on licensing locations that sell
liquid fuels, to wit, that liquid fuels cannot be sold on the licensed portion of a premises,
was correct.
6. Paragraph 6 states a conclusion of law for which no further response is
required. By way of further answer, the Commonwealth Court specifically held that the
Board's interpretation of the Liquor Code's prohibition on licensing locations that sell
liquid fuels, to wit, that liquid fuels cannot be sold on the licensed portion of a premises,
was correct.
7. Admitted.
8. Admitted. By way of further answer, those parties (Malt Beverage
Distributors Association, Gabler's Beverage Distribution, Inc., and PKD, Inc., hereinafter
collective referred to as "MBDA") would ultimately file an appeal of the Board's
decision as well. That matter is before the Commonwealth Court, at 1352 C.D. 2014, and
proceedings in that matter have been stayed by the Commonwealth Court until this matter
is resolved.
9. Admitted.
10. Admitted.
11. Admitted.
12. Admitted.
2
13. Admitted. By way of further answer, that appeal preserved a single issue
for this Honorable Court to review, to wit, whether the liquid fuels prohibition found in
the Liquor Code prevented the issuance of this license.
14. Admitted. By way of further answer, MBDA concurrently filed an
Application for Expedited and En Banc Review, arguing that en banc review was
necessary because, inter alia, Water Street Beverage, Ltd. V. Pennsylvania Liquor
Control Board, 84 A.3d 786 (Pa. Cmwlth. 2014) was wrongly decided.
15. Admitted.
The Automatic Supersedeas Should be Vacated
16. Paragraph 16 states a conclusion of law for which no further response is
required. If further response is required, it is admitted.
17. Paragraph 17 states a conclusion of law for which no further response is
required. If further response is required, it is admitted.
18. Paragraph 18 states a conclusion of law for which no further response is
required. If further response is required, it is admitted.
19. a. Admitted. By way of further answer, regardless of the deference this
Honorable Court may or may not have to give to a Board's decision, the Commonwealth
Court decision in Water Street means that the Commonwealth Court has adopted the
Board's reasoning. Their decision is clearly binding on this Honorable Court.
19. b. Paragraph 19 (b) states a conclusion of law for which no further
response is required. If further answer is required, it is admitted. By way of further
3
answer, the legislative history provided by Petitioner at the hearing held before this
Honorable Court does not establish that the Commonwealth Court decision in Water
Street was wrongly decided. At best, it establishes that no liquid fuels activity can occur
on locations licensed by the Board whereas prior to 1987, certain activity could occur.
That change does not address the core issue in both Water Street and the instant case, to
wit, what is the area subject to the prohibition.
19. c. Paragraph 19(c) states a conclusion of law for which no further
answer is required. If further answer is required, it is admitted that the Pennsylvania
Supreme Court's decision to not accept an appeal in Water Street means that Water Street
remains the law on this issue. By way of further answer, MBDA, which is also
represented by Petitioner's counsel and which has filed its own appeal to the
Commonwealth Court, concurrently filed with the Commonwealth Court an Application
for Expedited and En Banc Review, arguing that en banc review was necessary because
inter alia, Water Street was wrongly decided
19. d. Paragraph 19(d) states a conclusion of law for which no further
answer is required. If further answer is required, it is admitted that the Board interprets
the four sections of the Liquor Code that prohibit liquid fuels in pari materia See Roberts
v. Com. Pennsylvania Liquor Control Bd., 604 A2d. 1152 (Pa. Cmwlth 1992). Further,
the Commonwealth Court, in adopting the Board's interpretation, noted that such
interpretation was appropriate, even though the Liquor Code and the Board's Regulations
use different words - premise, place, location, portion - to essentially mean the same
4
thing. It is further admitted that a contrary interpretation would lead to absurd results.'
Finally, it is noted that if the Legislature wanted to prohibit the holder of a liquor license
(or associated persons) from selling liquid fuels, rather than limiting where such sales
could occur, it would have written a prohibition similar to what is found in section
492(12) of the Liquor Code (prohibiting distributor or importing distributor or its servants
agents or employees from engaging in any other business without Board approval) and
section 492(14) (prohibiting and malt or brewed beverage licensee and its servants agents
or employees from manufacturing, importing, selling, storing, trading or bartering any
liquor or alcohol). 47 P.S. §§ 4-492(12), 4-492(14).
19. e. Admitted in part. It is admitted that two related separate legal
entities are located within the same building and parking lot. The rest of the paragraph
constitutes speculation for which no response is required.
19. f. Paragraph 19(0 states a conclusion of law for which no further
answer is required. If further answer is required, interpreting the different liquid fuel
provisions is the Liquor Code differently would be contrary to Water Street. Again as
noted earlier, when MBDA, who is also represented by Petitioner's counsel, filed its
appeal to the Commonwealth Court, it also asked the Commonwealth Court to have the
matter heard en banc because they knew that they can only prevail if Water Street is
overturned.
1 It should be noted that at the hearing before this Honorable Court, Petitioners have argued that this Honorable
Court should ignore the Board's and the Commonwealth Court's interpretation of the liquor fuels prohibition and
instead adopt the hearing examiner's interpretation. To be clear, the hearing examiner is not a fact finder. Rather, he
is more akin to the judicial clerk who provides a recommendation to this Honorable Court. His opinion has no
precedential value.
5
19. g. Paragraph 19(g) state a conclusion of law for which no further
answer if required.
20. It is admitted that Intervener is harmed if it is unable to sell alcohol
notwithstanding the fact that the Board in accordance with the Commonwealth Court's
decision in Water Street granted its application. The remaining portion of paragraph 20
states a conclusion of law for which no further answer is required.
21. Paragraph 21 states a conclusion of law for which no response is required.
If further response is required, the Board is unaware of anyone who would be irreparably
harmed if the motion is granted.
22. Admitted.
WHEREFORE, The Pennsylvania Liquor Control Board respectfully requests that
this Honorable Court to vacate the automatic supersedeas in this matter.
October 9, 2014 Respectfully Submitted,
°-11///-
RODRIGO J. bIAZ
Executive Deputy Chief Counsel
Attorney I.D. No. 62259
PENNSYLVANIA LIQUOR CONTROL
BOARD
401 Northwest Office Building
Harrisburg, PA 17124-0001
Telephone: (717) 783-9454
FAX: (717) 787-8820
6
THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL DIVISION, STATUTORY APPEAL
CIVIL CLUB OF SHIPPENSBURG
(OHIO SPRINGS, INC. T/A SHEETZ,
Applicant)
Petitioner
vs.
PENNSYLVANIA LIQUOR CONTROL
BOARD
Respondent.
CASE NO. 14-4647
CERTIFICATE OF SERVICE
I hereby certify that I am on this date serving a copy of the foregoing Answer to
Motion to Vacate Automatic Supersedeas via UPS Overnight delivery to the following
persons:
Charles L. Caputo, Esquire
Caputo, Caputo & Regan, P.C.
204 Fifth Avenue, 5th Floor
Pittsburgh, PA 15222
Mark F. Flaherty, Esquire
Flaherty & O'Hara, P.C.
Flaherty & O'Hara, P.C.
610 Smithfield Street, Suite 300
Pittsburgh, PA 15222
October 9, 2014
Stanley J. Wolowski, Esquire
Flaherty & O'Hara, P.C.
610 Smithfield Street
Suite 300
Pittsburgh, PA 15222
Mark E. Kozar, Esquire
Flaherty & O'Hara, P.C.
610 Smithfield Street
Suite 300
Pittsburgh, PA 15222
Respectfully submitted,
RODRIGO J. 4IAZ
Executive Deputy Chief Counsel
Attorney I.D. No. 62259
PENNSYLVANIA LIQUOR CONTROL
BOARD
401 Northwest Office Building
Harrisburg, PA 17124-0001
Telephone: (717) 783-9454
FAX: (717) 787-8820
CIVIC CLUB OF SHIPPENSBURG IN THE COURT OF COMMON PLEAS OF
(OHIO SPRINGS, INC. T/A SHEETZ, CUMBERLAND COUNTY, PENNSYLVANIA
Applicant)
Petitioner,
Case No. 14-4647 CIVIL c
V. --T,--3: - -f
PENNSYLVANIA LIQUOR CONTROL
r-n
BOARD
Respondent.
C4 c {
IN RE: PETITION FOR APPEAL FROM DECISION OF PLCB :
BEFORE HESS, P.J.
ORDER
AND NOW, this �� day of October, 2014, it is hereby ordered that the
Pennsylvania Liquor Control Board (PLCB) Decision and Order dated July 17, 2014
approving the double transfer application of Pennsylvania Restaurant Liquor License
No. R-19377 to Ohio Springs, Inc. for use at premises located at 345 King Street,
Shippensburg, Pennsylvania 17257 is AFFIRMED and said transfer shall be
GRANTED.
BY THE COURT:
Kevi Hess, P.J.
✓Charles L. Caputo, Esquire
For the Petitioner
✓Rodrigo J. Diaz, Esquire
For PLCB
Mark F. Flaherty, Esquire
Stanley J. Wolowski, Esquire
Mark E. Kozar, Esquire
For Ohio Springs, Inc.
CIVIC CLUB OF SHIPPENSBURG IN THE COURT OF COMMON PLEAS OF
(OHIO SPRINGS, INC. T/A SHEETZ, CUMBERLAND COUNTY, PENNSYLVANIA
Applicant)
Petitioner,
Case No. 14-4647 CIVIL
V.
PENNSYLVANIA LIQUOR CONTROL
BOARD
Respondent.
IN RE: PETITION FOR APPEAL FROM DECISION OF PLCB
BEFORE HESS, P.J.
OPINION AND ORDER
Civic Club of Shippensburg (CCS) brought the instant matter by way of appeal
from the Pennsylvania Liquor Control Board's (PLCB) granting of an application for a
double inter-municipal transfer of Restaurant Liquor License No. R-19377 by Ohio
Springs, Inc. T/A Sheetz (Sheetz).
A hearing was held on March 18-19, 2014 before a PLCB hearing examiner
pursuant to section 464 of the Liquor Code (47 P.S. § 4-464). The hearing examiner
filed an opinion recommending to the PLCB that the application be denied.
Notwithstanding, the PLCB filed an order granting the transfer of R-19377 to Sheetz.
Upon appeal by CCS, the PLCB filed a comprehensive opinion in support of its order.
CCS filed their appeal to this Court under 47 P.S. § 4-464 maintaining standing as a
non-profit organization located within 300 feet of the proposed licensed premises.
There is also a concurrent appeal by separate interveners before the Commonwealth
Court of Pennsylvania, 1352 C.D. 2014, which has stayed its proceedings pending the
resolution of the matter before us.
A common pleas court hears appeals under 47 P.S. § 4-464 de novo. The
Pennsylvania Supreme Court has further defined the standard noting that "an appeal
from a decision of the Board ... required the court of common pleas to conduct a de
novo review, and in the exercise of its statutory discretion, to make findings and
conclusions. [The Supreme Court] also held that this language permitted a court of
common pleas, based upon its de novo review, to sustain, alter, change, or modify a
penalty imposed by the Board whether or not it makes findings which are materially
different from those found by the Board." Pa. Liquor Control Bd. v. Richard E. Craft Am.
Legion Home Corp., 718 A.2d 276, 282 (Pa. 1992).
In light of the above standard, we find no error in the PLCB's findings of fact, as
such, and adopt them. Accordingly, ¶¶1-360 of the PLCB Opinion are herein
incorporated by reference. Despite the seemingly broad nature of de novo review, at
the hearing before this Court the parties only addressed the issue of the co-location of
the sale of liquid fuels and alcohol. This issue was labeled, in the PLCB's opinion, as
objection 7. (PLCB Opinion, 10). We adopt the PLCB's conclusions with respect to the
12 other objections. Therefore, this opinion addresses only the narrow issue of whether
both alcohol and gasoline are sold at the proposed licensed premises in violation the
Liquor Code, specifically 47 P.S. §§ 4-404, 4-468.
47 P.S. § 4-404, in relevant part, states "[t]he board shall refuse any application
for a new license, the transfer of any license to a new location or the extension of any
license to cover an additional area where the sale of liquid fuels or oil is conducted."
Meanwhile, 47 P.S. § 4-468(a)(3) states "[n]o license shall be transferred to any place
or property upon which is located as a business the sale of liquid fuels and oil."
Therefore, the question before this Court is whether the proposed licensed premises is
the same location, place, or property upon which gasoline will be sold.
2
CCS argues that the plain language of the controlling statutes compels this Court
to deny Sheetz' application, since the proposed licensed premises would be co-located
with the location, place, or property where gasoline is sold. Both Sheetz and the PLCB
state that the Sheetz Restaurant (where beer will be sold) and the Sheetz Convenience
Store (where gasoline is dispensed) are separate properties and, therefore, the license
is proper.
The land upon which the proposed licensed premises would be situated is owned
by C.S.P. Investments, Inc. (CSP). (Notes of Testimony, In Re: R-19377 Application,
537, March 19, 2014 (hereinafter "N.T. at_")). CSP subdivided the entire property into
two condominium units—Unit 1 and Unit 2—and a common area. (N.T. at 537-538). The
condominium units would have separate tax assessments, as well as different real
estate tax numbers. (N.T. at 542-543, 546-547). Unit 1, the location of the proposed
license premises, is being leased from CSP by Ohio Springs. (N.T. at 539-540). Ohio
Springs' parent company, Sheetz, Inc., is leasing Unit 2 of the condominium, and the
common area would be shared between the two entities. (N.T. at 541). The
Declaration of Condominium restricts the use of each unit such that Unit 1 cannot be
used for the sale of gasoline and Unit 2 cannot be used for the sale of alcohol. (N.T. at
540, 542).
Under Pennsylvania law, a condominium is defined as "[r]eal estate, portions of
which are designated for separate ownership and the remainder of which is designated
for common ownership solely by the owners of those portions." 68 Pa.C.S.A. § 3103.
The portions referenced in the definition are further defined as units. Id. Therefore, it is
the clear intention of the state legislature that, when a Declaration of Condominium has
3
been filed, the units are considered distinct properties, able to be owned by different
entities and treated as separate interests.
Here, CSP has duly filed a Declaration of Condominium, dividing the property
into Unit 1, Unit 2, and the common area. CSP has retained ownership over the units,
as well as the common area. The units were then leased by CSP to Ohio Springs and
Sheetz. This is no longer merely one property, but is instead one parcel with separate
and distinct subdivisions which are freely transferrable. The proposition that subdivision
by Declaration of Condominium is sufficient to comply with 47 P.S. §§ 4-404, 4-468 is
further bolstered by the PLCB's statements and past interpretations of the Liquor Code.
We initially note that "[t]he Board's interpretation of the Liquor Code and the regulations
is given deference unless it is clearly erroneous." Irem Temple AAONMS v. Pa. Liquor
Control Bd., 87 A.3d 983, 997 (Pa. Commw. Ct. 2014) (citing Pa. Liquor Control Bd. v.
Richard E. Craft Am. Legion Home Corp., 718 A.2d 276, 278 (Pa. 1998)). Further,
"[b]ecause the Liquor Code is remedial legislation, its provisions must be liberally
construed to accomplish its purpose." Id. at 995. The PLCB decision discussed in
WaterStreet Bev., LTD v. Pa. Liquor Control Bd., 84 A.3d 786, 796 (Pa. Commw. Ct.
2014), defined the term "location," as used in 47 P.S. § 4-432, to be in relation to the
particular area to be licensed. The WaterStreet court agreed. While WaterStreet
addressed a different numerical section of the Liquor Code, the language of the section
in WaterStreet, 47 P.S. § 4-432, and the section at issue before us, 47 P.S. § 4-404, is
identical.
Counsel for PLCB, Mr. Diaz, articulated that the sections of the Liquor Code at
issue were focused on the specific bounds of the licensed premises, as opposed to
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other Liquor Code regulations which focus on the identity of the applicant. Mr. Diaz's
argument comports with the interpretation stated in WaterStreet.
Here, the application states that the licensed premises will be Unit 1 of the
condominiums located at 345 King Street, Shippensburg, PA. (N.T. at 557). Unit 1 is
distinct from Unit 2, enough that Unit 2 is identified by a separate mailing address, 359
King Street, Shippensburg, PA. (Id.). Unit 1 has clearly delineated borders and is
separated from both Unit 2 and the common areas by walls and doorways. Unit 1 is a
fixed area comprised of 6,567 sq. ft. (MBDA 7) while Unit 2 is 15,207 sq. ft. (MBDA 8).
Based on Sheetz' testimony and the restrictions set forth in the Declaration of
Condominium, no gasoline or other liquid fuel will be sold within the boundaries,
confines, or area defined as Unit 1, the proposed licensed premises.
Additionally, at trial there was much comparison between the Shippensburg and
Altoona Sheetz locations because Altoona is the only other Sheetz location in
Pennsylvania to have been granted a liquor license. In Altoona, the land was
subdivided into two separate parcels. (N.T. at 561). That not being possible in
Shippensburg (N.T. at 533-534), the Declaration of Condominium was filed to create
separate legal interest within the parcel. At the PLCB hearing, Sheetz indicated that it
was not attempting to circumvent Liquor Code regulations, but to comply with them.
(N.T. at 545, 561). It appears that they have done so.
Finally, CCS argues that to grant this license would be to go against the policy
set forth by the Liquor Code. Specifically, CCS argues that the purpose of the Liquor
Code is to restrain the sale of alcohol and protect the public welfare, health, peace, and
morals of our citizens. There have been no meritorious allegations as to corruption of
the public welfare, health, peace, or morals of the citizenry. Nor do we find any upon
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review of the record. In fact, the entity arguably in the best position to determine any
detrimental effects upon the community, the Borough of Shippensburg, had the chance
to let such concerns be known prior to Sheetz filing the instant application when the
Borough considered Resolution No. 12-015. Instead, the resolution passed. More
importantly, however, the PLCB's role is to restrain and regulate the sale of alcohol, not
prohibit it in its entirety. Sheetz has met its burden under the statutes set forth by the
legislature and, absent any finding of corruption to the community, the PLCB duly
granted the transfer of the license.
Therefore, in light of the clear separation between the sale of gasoline and
alcohol, in addition to the incorporated conclusions with respect to the other objections
from the PLCB opinion, we grant the application for the double inter-municipal transfer
of Restaurant Liquor License No. R-19377 by Ohio Springs, Inc. T/A Sheetz (Sheetz).
ORDER
AND NOW, this day of October, 2014, it is hereby ordered that the
Pennsylvania Liquor Control Board (PLCB) Decision and Order dated July 17, 2014
approving the double transfer application of Pennsylvania Restaurant Liquor License
No. R-19377 to Ohio Springs, Inc. for use at premises located at 345 King Street,
Shippensburg, Pennsylvania 17257 is AFFIRMED and said transfer shall be
GRANTED.
BY THE COURT:
- /� J'_
Kevin . Hess, P.J.
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