Download - Shippensburg Sheetz Appeal

Fit ED - OF 11-1E PROTHONIL

CUMBERLANDPENNSYLVAICOUNTY

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, ) aSTATUTORY 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)

[email protected]

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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


412- 325- 0693

412- 690-2350 ( facsimile)

[email protected]

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

pennsyhraniaLIQUOR CONTROL BOARD

Northwest Office BuildingHarrisburg, 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 StreetShippensburg, 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 LicenseR- 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 havean inside passage or communication to or with any business conducted by the licensee orother 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 saleof 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 anunlicensed convenience store.

The approval is subject to the following conditions:

1. The transferred license, which will now be issued in the name of thelicensee 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 withthese requirements shall be considered cause for revocation of the license.

4. Upon completion of the premises, the following will be required to initiatefinal 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 thepremises. This may be in the form of a photocopy or a written statementfrom 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 requiredfee. 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 theLiquor 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


July 17, 2014

If you intend to conduct any catered functions during the calendar year in which thelicense 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 youfrom 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 Section717) 787- 6728

Hours: 7: 30 AM to 4: 00 PMJWW: ch


ITRBDPRAPP 07/ 12

pennsyLvaniaLIQUOR CONTROL BOARD

Northwest Office BuildingHarrisburg, 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 StreetShippensburg, 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 havean inside passage or communication to or with any business conducted by the licensee orother 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 saleof 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.


2


July 31, 2014

2. PLCB- 1854TP, " Certification of Completion," affirming all financial

arrangements except the costs of construction/ renovations to the licensedpremises 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 transactioncompletion 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 beaccomplished within six ( 6) months from this date. Failure to comply withthese requirements shall be considered cause for revocation of the license.

4. Upon completion of the premises, the following will be required to initiatefinal 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 thelicensed 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 thepremises. This may be in the form of a photocopy or a written statementfrom the issuing authority.

At the time of the investigation, the premises must be ready foroperation 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 requiredfee. 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 theLiquor 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 licensedpremises is operational.


3


July 31, 2014

If you intend to conduct any catered functions during the calendar year in which thelicense 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 the500. 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 youfrom 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 Section717) 787- 6728

Hours: 7: 30 AM to 4: 00 PMJWW: ch


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 thehearing, 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 LiquorControl Board approved the application for " Intermunicipal" double transfer of RestaurantLiquor 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 Opinionwill 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 andtestify at the hearing on how they would be would be directly aggrieved by the approval ofApplicant' s application.

Jaye Alleman should be granted standing as a protestant in the instant matterbecause he resides within 500 feet of the proposed licensed premises.

The Civic Club of Shippensburg should be granted standing as a protestant in theinstant matter because it is a charitable institution that is located within 300 feet ofthe proposed licensed premises.

John Mummau should not be granted standing as an intervenor in this matter becausehe did not provide sufficient non -speculative evidence on how he would be directlyaggrieved by the approval of Applicant' s application.

James Andrews should not be granted standing• as an intervenorhe 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 indid not provide sufficient good cause for his late -filed petition.

Gabler' s Beverage Distributor should be granted standing asmatter 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 theOhio Springs and s' decisions.

Malt Beverage Distributors Association should be granted standing as an intervenorin 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 BuildingCapital and Forster Streets

Harrisburg, PA 17124- 0001

Commonwealth of Pennsylvania

Pennsylvania Liquor Control Board

Bureau of LicensingNorthwest Office Building, Room 108Harrisburg, PA 17124- 0001ATTENTION: Tisha Albert

Mark Flaherty, EsquireFlaherty & O' Hara, P.C.

610 Smithfield Street, Suite 300


Charles 1/ Caputo, EsquireCounsel for Petitioner

6

Download - Shippensburg Sheetz Appeal

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