Weis Markets, Inc. v. Lancaster Twp. – 54 C.D. 20

W
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Weis Markets, Inc.                          :
                                            :
             v.                             :
                                            :
Lancaster Township,                         :   No. 54 C.D. 2020
                 Appellant                  :   Argued: December 8, 2020


BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE P. KEVIN BROBSON, Judge1
             HONORABLE CHRISTINE FIZZANO CANNON, Judge



OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON                         FILED: January 13, 2021


             Lancaster Township (Township) appeals from an order of the Court of
Common Pleas of Lancaster County (trial court) that reversed the Township’s denial
of an application by Weis Markets, Inc. (Weis) for an intermunicipal liquor license
transfer (Transfer). The Transfer would allow Weis to sell alcoholic beverages in
conjunction with an on-premises restaurant inside a grocery store located in the
Township. The Township denied the Transfer based on its conclusion that the
Transfer would adversely affect the health, welfare, peace, and morals of the
Township and its residents. After reviewing the record before the Township without
taking additional evidence, the trial court reversed the Township’s denial of the



      1
        The decision in this case was reached prior to January 4, 2021, when Judge Brobson
became President Judge.
Transfer, finding the Township’s decision was not supported by substantial
evidence. Upon review, we affirm the trial court’s order.
                                         I. Background
                            A. Transfer Approval Requirement
                The Pennsylvania Liquor Control Board (PLCB) will normally approve
an intermunicipal transfer of a liquor license, regardless of how many other licensed
businesses are located in the transferee municipality, provided the transferee meets
all statutory and regulatory requirements and the transfer will not adversely affect
the health, welfare, peace, and morals of the transferee community within 500 feet
of the transferee premises. See Section 404(a) of the Liquor Code,2 47 P.S. § 4-404;
P&R Beverage, Inc. v. Pa. Liquor Control Bd., 

219 A.3d 1227

, 1235 (Pa. Cmwlth.
2019) (a restaurant is entitled to a liquor license if it satisfies the statutory criteria of
the Liquor Code).
                However, Section 461(b.3)3 of the Liquor Code provides that an
intermunicipal transfer of a liquor license “must first be approved by the governing
body of the receiving municipality when the total number of existing restaurant
liquor licenses and eating place retail dispenser licenses in the receiving municipality
equal or exceed one license per three thousand inhabitants.” 47 P.S. § 4-461(b.3).
Section 461(b.3) of the Liquor Code expressly requires that an application to the
PLCB for approval of an intermunicipal transfer must include documentation of the
transferee municipality’s approval. Id.; see Giant Food Stores, LLC v. Penn Twp.,

167 A.3d 252

, 254 (Pa. Cmwlth. 2017) (en banc).                      Thus, if the transferee


       2
           Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§ 1-101 – 10-1001.
       3
           Added by Section 9 of the Act of December 20, 2000, P.L. 992, 47 P.S. § 4-461(b.3).

                                                 2
municipality denies approval, the transfer cannot occur.4 See Giant 

Food, 167 A.3d at 260

(without prior municipal approval, an intermunicipal transfer application to
the PLCB “would be fatally flawed”) (original emphasis deleted).
               Here, it is undisputed that the number of businesses with liquor licenses
in the Township exceeds 1 for each 3,000 residents. Accordingly, an intermunicipal
license transfer into the Township requires the Township’s approval before the
PLCB will authorize the transfer.
                             B. Weis’s Transfer Application
               Weis submitted an application to the Township for approval of the
Transfer, which was the subject of a public hearing by the Township on July 11,
2016. Notes of Testimony, Public Hearing – Petition by Weis Markets, Inc. for
Intermunicipal Transfer of Liquor License (N.T.) at 1; Reproduced Record (R.R.) at
8.5 At the hearing, Weis presented information through its attorney, Mark Kozar,
Esquire. Also present on behalf of Weis, and available to answer questions, was its
Manager of Architectural Department, Alexander Ororbia. N.T. at 2; R.R. at 9.
Attorney Kozar stated:
               Weis Markets is a publicly traded          company headed in
               Sunbury, Pennsylvania. Founded             in 1912, Weis has
               grown to 165 stores in five states.        Weis employs over
               18,000 associates, and the store            here in Lancaster

       4
         Notably, there is no mechanism for the Pennsylvania Liquor Control Board (PLCB) to
review a municipality’s denial of approval; nor is there any means by which the applicant may
request such review by the PLCB. Section 461 of the Liquor Code, 47 P.S. § 4-461(b.3); Giant
Food Stores, LLC v. Penn Twp., 

167 A.3d 252

, 255-56 (Pa. Cmwlth. 2017) (en banc) (no appeal
is permitted under the Liquor Code from a municipality’s denial of a transfer application). As
discussed below, however, a municipality’s denial of a transfer application is subject to judicial
review under the Local Agency Law, 2 Pa. C.S. §§ 551-555, 751-754.
       5
         The Township failed to number its reproduced record in the format (1a, 2a, 3a, etc.) as
required by Pa. R.A.P. 2173. For clarity, in our references to the reproduced record, we use the
Township’s page number format in this opinion.
                                                3
          Township has been open since 1962, and employs 115 full
          and part-time associates. Weis Markets is very active in
          the local community, is a very good community member.
          They support the Southern PA Food Bank, the Alpha
          Omega Food Pantry, Aerials Acres, Lancaster Educational
          Foundation, Lancaster Science Factory, the YMCA of
          Central Pennsylvania, and the Breast Cancer Coalition.
          Why is this important? It’s important because Weis has a
          reputation, and they [sic] have too much to lose to handle
          alcohol in a way that would diminish their [sic] reputation
          in the community in any way.
          What we are requesting here is nothing new or unusual.
          Over the past nine years, the PLCB has approved liquor
          licenses to over 350 grocery store[-]based restaurants
          including [55] other Weis grocery stores. Here in
          Lancaster County, Weis has stores in Lititz, Ephrata,
          Lancaster, West Lampeter, that have liquor licenses and
          are selling beer. As you can see from the floor plan that
          was handed out, Weis is going to do a remodel and as part
          of that remodel will be to have a café in the left front of
          the store. . . . [A]ll food will be single servings to eat in or
          to go, prepared in the café. The café will be open for
          breakfast, lunch, and dinner. The hours of operation will
          be Monday through Friday, 7:00am to 11:00pm, and
          Sundays, 9:00am to 11:00pm. There will be a designated
          restaurant manager who will receive the bureau of liquor
          control enforcement developed responsible alcohol
          management program manager training.                 All café
          associates will also receive server training. Weis has a
          100% carding policy. Everybody gets carded. Weis uses
          either a card scanner or a cash register lock out system that
          requires a clerk to look at somebody’s ID, punch in their
          [sic] birthdate before the cash register will take the SKU
          for beer sales.
          And let me just back up a minute and talk about beer sales,
          because actually since the change in the law you probably
          all are aware that Act 39[6] signed by the [G]overnor on
          June 8th becomes effective August 8th and it will permit
          restaurants to get what are called extended wine licenses

6
    Act of June 8, 2016, P.L. 273.
                                         4
             which will permit them to sell up to four bottles of wine
             and Weis does plan on doing that. Weis will be offering
             single serve beers for on premise[s] consumption with
             selling limit of [2] beers for on[-]premise[s] consumption
             and up to 192 fluid ounces for take-out. All beer must be
             purchased at the cash register on the licensed premises.
             None of the other cash registers in the store will accept the
             SKUs for beer, and the same will be true with bottles of
             wine. Weis has rotating security cameras that cover the
             café area. These cameras are monitored by security
             personnel, in addition the manager and all the associates
             in the café are physically monitoring the café area. This is
             not the type of place where people are going to come and
             hang out and drink because there is a two beer limit. There
             is no entertainment in the form of video games or pool
             tables, and there’s no smoking. It will be a well-lit[] and
             secure place for customers, of which, 70% are women,
             where you can purchase prepared food, and a 6-pack of
             beer, and a bottle of wine to take home, or to dine in and
             have a drink. Weis is a responsible owner making a
             significant investment in the community that will be
             protected by responsible management and well-trained
             employees . . . .

N.T. at 3-4; R.R. at 10-11.
             In addition, the following colloquy took place between Attorney Kozar
and one of the Township supervisors concerning nearby businesses with liquor
licenses:
             Ms. Wasong: We have a Ruby Tuesday right there with a
             liquor license.
             Mr. Kozar: And they don’t sell beer to go.
             Ms. Wasong: No, but the House of Pasta that directly abuts
             Weis parking lot can, and a few blocks down the road there
             is another, and there is a beer distributor in the shopping
             center.
             Mr. Kozar: But you can’t buy a six-pack of beer in a beer
             distributor, and that’s their point.

                                          5
               Ms. Wasong: But you can buy a 12-pack.
               Mr. Kozar: What if I don’t want to buy a 12-pack?

N.T. at 6; R.R. at 13.
               Attorney Kozar’s statements constituted the entirety of the evidence
presented at the hearing;7 no evidence was offered to counter Weis’s evidence. See
generally N.T. at 1-7; R.R. at 8-14. Notably, in its subsequent adjudication, the
Township found Weis “presented testimony” at the hearing, and further found as a
fact: “The evidence described the proposed café and the manner in which Weis . . .
would operate the café in compliance with applicable Commonwealth laws and
regulations for the sale of alcoholic beverages.” Adjudication, Finding of Fact Nos.
7, 10; R.R. at 24.
               One member of the public spoke in favor of the Transfer, pointing out
the convenience of avoiding “an extra stop” by picking up a bottle of wine while at
the grocery store. N.T. at 4-5; R.R. at 11-12. No member of the public opposed the
Transfer. See generally N.T. at 1-7; R.R. at 8-14.
               At the conclusion of the hearing, the Township’s supervisors declined
the opportunity to ask questions or extend their time for making a decision. N.T. at
6-7; R.R. at 13-14. Instead, they made comments expressing general concerns about
the number of nearby licensed premises, without tying those concerns to any record
evidence. See N.T. at 7; R.R. at 14. They then voted unanimously to deny the
Transfer.

Id. In its subsequent

written adjudication, the Township listed the nearby
businesses with liquor licenses and stated a bare conclusion that the Transfer was
denied because it would adversely affect the health, welfare, peace, and morals of


      7
          No one objected to the admission of Attorney Kozar’s statements as evidence.

                                               6
Township residents.8 Adjudication at 3-4, Findings of Fact Nos. 12-14, Conclusion
of Law No. 5; R.R. at 25-26. The adjudication did not cite any evidence in the record
in support of that conclusion. See

id. Weis appealed the

Township’s decision to the trial court, which decided
the appeal on the Township’s record without taking additional evidence.9 Trial Ct.
Op. at 1; R.R. at 138. After reviewing the record, the trial court entered an order
reversing the Township’s denial of the Transfer. Trial Ct. Order; R.R. at 137. The
trial court concluded there was no evidence in the record to support the Township’s
subjective concerns about the effect of the Transfer on the Township’s residents; to
the contrary, all of the evidence demonstrated there would be no adverse effect. Trial
Ct. Op. at 2-7; R.R. at 139-44.
               This appeal by the Township followed.10
       8
         The Township also concluded the Transfer was not necessary to the Township’s economic
development. Adjudication at 4, Conclusion of Law No. 5; R.R. at 26. However, the parties agree
that conclusion is not relevant, as that was not the basis upon which Weis requested approval of
the Transfer. Trial Ct. Op. at 3 n.2.
       9
         Neither party suggests there is additional evidence that the trial court should have
admitted or considered.
       10
           The current version of Section 461(b.3) of the Liquor Code expressly provides there is
no appeal from a municipality’s denial of a liquor license transfer application. However, in Giant
Food, this Court determined that Section 751(a) of the Local Agency Law, 2 Pa. C.S. § 751(a),
provides a right of appeal from an adjudication by a township as a local agency, including a denial
of an intermunicipal transfer of a liquor license, even though Section 461(b.3) provides no appeal
under the Liquor Code. See Giant 

Food, 167 A.3d at 256-61

. The parties here do not dispute that
this appeal is governed by the provisions of the Local Agency Law.
        In an appeal under the Local Agency Law, where the agency record is complete, the trial
court decides the appeal based on the agency record, without holding a de novo hearing. See 2 Pa.
C.S. § 753(b). In that instance, the trial court’s review is limited to determining whether the local
agency’s adjudication violated the appellant’s constitutional rights, was not in accordance with
applicable law, or violated the rules of practice and procedure before local agencies, or whether a
necessary finding of fact was not supported by substantial evidence. 2 Pa. C.S. § 754(b).
        Our review is similarly limited. In an appeal concerning a local agency’s adjudication,
where a complete record was developed before the agency, our review on appeal from the trial

                                                 7
                                            II. Issues
               Section 461(b.3) of the Liquor Code provides that a municipality “may”
approve an application for an intermunicipal license transfer. 47 P.S. § 4-461(b.3).
Section 461(b.3) imposes no express limitation on a municipality’s exercise of its
discretion in granting or denying approval of a transfer. The two interrelated central
issues of this appeal are whether the Township was required to support its denial of
the Transfer with substantial evidence, and whether it abused its discretion by
denying the Transfer in the absence of such evidence.
                                        III. Discussion
                                  A. Substantial Evidence
               The Township based its denial of the Transfer on its conclusion that the
Transfer would adversely affect the health, welfare, peace, and morals of the
Township’s residents. The trial court found the Township’s denial of the Transfer
was not supported by substantial evidence. We agree.
               Granting a liquor license is not inherently detrimental to a community’s
health, welfare, peace, and morals. K&K Enters., Inc. v. Pa. Liquor Control Bd., 

602 A.2d 476

, 480 (Pa. Cmwlth. 1992); In re 23rd St., Inc., 

517 A.2d 581

, 582 (Pa.
Cmwlth. 1986). Rather, this Court has found that specific, objective evidence from
a municipality is required to support a finding that a liquor license transfer will have
a detrimental effect on the community; statements of general concern, without
specific details, do not constitute substantial evidence in support of a transfer denial.
See, e.g., AWT Beaver Indep. Deli, Inc. v. Pa. Liquor Control Bd., 

876 A.2d 500

,
505 (Pa. Cmwlth. 2005); Boston Concessions Grp., Inc. v. Logan Twp. Bd. of

court is limited to determining whether the agency violated constitutional rights, committed errors
of law, failed to adhere to statutory procedure requirements, or made necessary findings of fact not
supported by substantial evidence. Id.; Kovler v. Bureau of Admin. Adjudication, 

6 A.3d 1060

,
1062 n.1 (Pa. Cmwlth. 2010).
                                                 8
Supervisors, 

815 A.2d 8

, 13 (Pa. Cmwlth. 2002) (testimony asserting saturation of
existing businesses with liquor licenses, and raising concerns that transfer of an
additional license would increase traffic and parking issues and devalue other local
licenses “was at most, general and speculative” and did not demonstrate the transfer
would be adverse to the local welfare, health, and morals); 23rd 

St., 517 A.2d at 582

(objections asserting potential problems and perceived threats to the character of the
neighborhood from additional liquor consumption did not constitute substantial
evidence for a license denial); cf. Manayunk Dev. Corp. v. Pa. Liquor Control Bd.,

715 A.2d 518

, 521-22 (Pa. Cmwlth. 1998) (substantial evidence supported denial of
transfer where there was testimony of city council member describing extensive
efforts to control local parking, civil engineer who performed traffic study, and urban
planner who stated any increase in seating capacity at local restaurant would
exacerbate existing parking deficit).11
               Additionally, although Section 404(a) of the Liquor Code allows the
PLCB to consider whether other licensed businesses are within 200 feet of a
proposed transferee business, there is no parallel provision where a municipality is
considering an intermunicipal license transfer request. Moreover, and contrary to
the Township’s argument, even where a transfer denial is permissibly based on the
proximity of other licensed properties to the premises at issue, there must be
evidence to establish precisely the relevant distance. See, e.g., P&R 

Beverage, 219 A.3d at 1229-30

(the 200-foot measurement is from the nearest point of the proposed
licensed premises to the nearest point of each existing licensed business; for a

       11
           This Court decided the cited cases under the previous version of Section 461(b.3) of the
Liquor Code, former 47 P.S. § 4-461(b.3). As discussed in the next section, the current version of
the statute contains different language concerning the Township’s discretion to approve or deny a
license transfer. However, for purposes of what constitutes substantial evidence, the cited
authorities are still applicable.
                                                9
grocery store proposing to install a restaurant area where alcohol can be purchased,
the measurement is from the nearest point of the restaurant area, not from the edge
of the grocery store building); Arrington v. Pa. Liquor Control Bd., 

667 A.2d 439

,
445 (Pa. Cmwlth. 1995) (error by the PLCB, and subsequently by the reviewing
court, in relying on close proximity of other licensees to demonstrate adverse effect
of proposed transfer, were “manifest” where there was no evidence of relevant
distance measurements).
             Here, Weis offered evidence that it is active in supporting the local
community and has a good reputation; it has 55 other grocery stores with liquor
licenses, including 4 locations in Lancaster County; the designated restaurant
manager will receive training from the Bureau of Liquor Control Enforcement in
responsible alcohol management program manager training, and all café associates
will receive server training; Weis will use either a card scanner or a cash register
lock out system that requires a clerk to look at each customer’s identification and
punch in the birthdate before the cash register will take the SKU for beer sales; there
will be a selling limit of 2 beers for on-premises consumption and no more than 192
fluid ounces (by our calculation, the equivalent of two 6-packs of 16-ounce cans or
bottles) for take-out; and rotating security cameras, monitored by security personnel,
will cover the café area in addition to restaurant personnel who are physically
monitoring the café area. N.T. at 3-4; R.R. at 10-11. Notably, the Township did not
reject any of Weis’s evidence; to the contrary, the Township found Weis offered
evidence that “described the proposed café and the manner in which Weis . . . would
operate the café in compliance with applicable Commonwealth laws and regulations
for the sale of alcoholic beverages.” Adjudication, Finding of Fact No. 10; R.R. at
24 (emphasis added). We agree with Weis that it presented substantial evidence that


                                          10
the Transfer would not adversely affect the health, welfare, peace, and morals of the
Township or its residents.
              By contrast, the Township offered neither its own evidence nor any
challenge to Weis’s evidence. The Township supervisors’ comments were general
expressions of concern of the type deemed insufficient in AWT, Boston Concessions,
and 23rd St. To the extent those comments related to the alleged proximity of other
licensed businesses, no supporting measurements were presented as required by
Arrington.12 In any event, the Township supervisors’ comments did not constitute
evidence. Accord Howell v. City of Erie Blighted Prop., 

87 A.3d 949

, 953 (Pa.
Cmwlth. 2014) (comments by members of city’s rental license appeal board at the
end of a hearing, expressing their concerns regarding safety, did not constitute
substantial evidence supporting a finding of a distinct hazard or safety and welfare
issue on the licensed property). Thus, the record does not contain any evidence
establishing the number of other licensed businesses in the area or their alleged
proximity to the Weis store at issue.
              Because the record contains no evidence of any adverse effect on the
Township or its residents, we need not determine the sufficiency of the evidence.
We find the trial court correctly determined there was not substantial evidence to
support the Township’s denial of the Transfer. Indeed, there was no evidence that
supported denying the Transfer. To the extent the Township was required to base
its decision on substantial evidence, its denial of the Transfer was in error.




       12
          Moreover, Weis correctly observes that the Township did not mention Section 404(a) of
the Liquor Code in its adjudication, nor did it base its adjudication on any finding that other
licensed businesses were within 200 feet of the proposed location of the restaurant inside Weis’s
grocery store in the Township.
                                               11
                                B. Abuse of Discretion
              However, the absence of substantial evidence does not end our inquiry.
The Township argues it had unfettered discretion to deny the Transfer, even if the
denial was not supported by any evidence.
              In general, an abuse of discretion in relation to a license transfer request
consists of a misapplication of the law, a manifestly unreasonable exercise of
judgment, or a decision resulting from partiality, prejudice, bias, or ill-will.

Arrington, 667 A.2d at 441

(citing Centrum Prime Meats, Inc. v. Pa. Liquor Control
Bd., 

455 A.2d 742

, 745 (Pa. Cmwlth. 1983)); see Mielcuszny v. Rosol, 

176 A.2d 236

,
237 (Pa. 1934); Pa. Liquor Control Bd. v. George Roscoe, Inc., 

431 A.2d 1119

, 1121
(Pa. Cmwlth. 1981). In Arrington, this Court found the PLCB abused its discretion
by denying a license transfer based on a finding that the transfer would adversely
affect the health, welfare, peace, and morals of the neighborhood, where there was
no evidence in the record to support that finding. 

Arrington, 667 A.2d at 447

.
              Here, Weis contends the Township abused its discretion by denying the
Transfer based on a finding, not supported by evidence, that the Transfer would
adversely affect the health, welfare, peace, and morals of the Township’s residents.
As the party asserting an abuse of discretion, Weis has the burden of proving such
an abuse; it is not the Township’s burden to further support its decision. See Malt
Beverage Distribs. Ass’n v. Pa. Liquor Control Bd. (Pa. Cmwlth., No. 900 C.D.
2009, filed Jan. 7, 2010), slip op. at 32, 2010 Pa. Commw. Unpub. LEXIS 272
(unreported)13 (citing Leckey v. Lower Southampton Twp. Zoning Hearing Bd., 

864 A.2d 593

, 596 n.4 (Pa. Cmwlth. 2004)).



       13
          We cite this unpublished decision as persuasive authority pursuant to our Internal
Operating Procedures. 210 Pa. Code § 69.414(a).
                                            12
               As discussed above, Weis is correct in asserting that the record contains
no evidence in support of the Township’s decision. Therefore, if the Township’s
exercise of its discretion pursuant to Section 461(b.3) of the Liquor Code requires
support by record evidence, then it abused its discretion in denying Weis’s
intermunicipal license transfer request.
               The Township, however, insists the legislature, by amending the
language of Section 461(b.3) of the Liquor Code, has given municipalities unfettered
discretion to deny intermunicipal license transfers. We disagree.
               Section 461(b.3) previously provided, in pertinent part:                     “The
municipality must approve the request unless it finds that doing so would adversely
affect the welfare, health, peace and morals of the municipality or its residents.”
Former 47 P.S. § 461(b.3) (emphasis added). However, the legislature amended
Section 461(b.3) in 2006. It now provides, in pertinent part: “The municipality may
approve the request.”         47 P.S. § 461(b.3) (emphasis added).               Moreover, the
legislature eliminated the requirement of a finding, before denying a request, that the
requested transfer would adversely affect the welfare, health, peace, and morals of
the municipality or its residents. See

id. The Township argues

that its discretion is now unfettered and it requires
no evidence to support its decision denying the Transfer. Accordingly, we must
determine whether there are any limits on the discretion conferred to the Township
in Section 461(b.3) the Liquor Code.14

       14
           We note that this case involves only potential statutory limits on the Township’s
discretion; as Weis does not question the constitutionality of the legislature’s alleged conveyance
of unfettered discretion to municipalities to deny intermunicipal license transfers, we do not
consider any constitutional issues here. Accord Malt Beverage Distribs. Ass’n v. Pa. Liquor
Control Bd. (Pa. Cmwlth., No. 900 C.D. 2009, filed Jan. 7, 2010), slip op. at 32 n.5, 2010 Pa.
Commw. Unpub. LEXIS 272 (unreported) (noting, in regard to an intermunicipal license transfer

                                                13
               The trial court relied on SSEN, Inc. v. Borough Council of Eddystone,

810 A.2d 200

(Pa. 2002), in which this Court affirmed a trial court’s reversal of a
municipality’s adjudication denying an intermunicipal liquor license transfer,
finding the municipality’s decision was not supported by substantial evidence.
However, the Township correctly asserts that because our decision in SSEN predated
the 2006 amendment of the language of Section 461(b.3) of the Liquor Code, that
decision does not resolve the question of whether a municipality’s discretion to deny
an intermunicipal transfer remains subject to any limitations under the amended
language of Section 461(b.3).
               We find guidance instead in Giant Food, in which this Court considered
the interplay of Section 461(b.3) of the Liquor Code with Section 751(a) of the Local
Agency Law, 2 Pa. C.S. § 751(a). The issue in Giant Food was whether an appeal
to a court would lie from a township’s denial of an intermunicipal license transfer
request, notwithstanding the express provision in Section 461(b.3) that there is no
appeal from such a denial. This Court concluded that Section 751(a) of the Local
Agency Law provided a right of appeal, pointing to its applicability “regardless of
the fact that a statute expressly provides that there shall be no appeal from an
adjudication of an agency . . . .” 2 Pa. C.S. § 751(a); see Giant 

Food, 167 A.3d at 256-57

.
               Of significance here, the dissent in Giant Food took the same position
advocated here by the Township, arguing that the legislature’s 2006 amendment of
Section 461(b.3), by making municipal approval of license transfers discretionary


to allow the sale of beer for takeout in connection with a grocery store business, that this Court
would not consider any constitutional issues regarding the Liquor Code’s failure to impose
statutory limits on the Board’s discretion to approve interior connections between the licensed area
and the rest of the grocery store, where the petitioners did not challenge the constitutionality of the
PLCB’s unlimited discretion in that regard).
                                                 14
and expressly stating there could be no appeal from denial of a transfer, intended to
confer unfettered discretion on municipalities in approving or denying transfer
requests. See Giant 

Food, 167 A.3d at 261

nn.22-23, 264 (summarizing dissent’s
conclusion that the legislature intended to convey to municipalities the exclusive
right to approve or deny intermunicipal license transfers as they see fit, and not
subject to any review, as long as they follow the statutory process). The majority
rejected this argument. Observing that “[s]uch unfettered discretion would permit a
municipality to deny an intermunicipal transfer of a liquor license for any reason,
even an unlawful one[,]” the majority explained:
             [We agree that Section 461(b.3)] reflects the General
             Assembly’s intention that local government should decide
             this local issue. However, the General Assembly also
             promulgated the Local Agency Law which provides for
             review even where a statute denies a right to appeal. Thus,
             the General Assembly clearly intended that local agency
             adjudications may not remain isolated and insulated from
             any review, especially where such decisions may be
             improperly impacted by abuses of discretion or motivated
             by unlawful discrimination.

Id. at 261

& n.22 (emphasis added).
             Although this Court’s discussion in Giant Food related to whether there
was a right of appeal, rather than a municipality’s level of discretion, the two issues
are related. Our analysis in Giant Food is equally applicable here. In Giant Food,
we essentially concluded the legislature could not have intended to allow a
municipality to abuse its discretion with impunity. Applying that principle here, we
similarly find that despite the absence of express limiting language in Section
461(b.3), the legislature could not have intended to confer unfettered discretion on




                                          15
municipalities to deny intermunicipal license transfers.                Thus, although broad,
municipalities’ discretion in making such transfer decisions is not unlimited.15
               Because we find the Township’s discretion is not unfettered, we
conclude that in the absence of any supporting evidence to support its determination
that the Transfer would have an adverse effect on the Township and its residents, the
Township’s adjudication constituted a misapplication of the law and a manifestly
unreasonable exercise of judgment, and therefore was an abuse of discretion. See

Arrington, 667 A.2d at 441

. Thus, the trial court correctly reversed the Township’s
denial of the Transfer.
                                        IV. Conclusion
               Based on the foregoing discussion, the trial court’s decision is affirmed.




                                              __________________________________
                                              CHRISTINE FIZZANO CANNON, Judge




       15
          By providing that a municipality “may” approve a license transfer, the language of
Section 461(b.3) implies a degree of discretion. Potentially, there could be a number of valid bases
on which a municipality might approve or deny a transfer request. However, we need not
determine or enumerate those various bases here. The sole basis of the Township’s denial of the
Transfer was its conclusion that the Transfer would adversely affect the health, welfare, peace, and
morals of the Township and its residents. Adjudication at 4, Conclusion of Law No. 5; R.R. at 26.
Therefore, that is the only basis at issue here.
                                                16
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Weis Markets, Inc.                    :
                                      :
            v.                        :
                                      :
Lancaster Township,                   :   No. 54 C.D. 2020
                 Appellant            :


                                 ORDER


            AND NOW, this 13th day of January, 2021, the order of the Court of
Common Pleas of Lancaster County is AFFIRMED.




                                    __________________________________
                                    CHRISTINE FIZZANO CANNON, Judge

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