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  • 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 yvs. ) PETITION FOR APPEAL FROM

    DECISION OF PENNSYLVANIALIQUOR 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 Floor204 Fifth AvenuePittsburgh, PA 15222412- 325- 0693412- 690-2350 ( facsimile) info@caputolawoffice.com

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  • IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIACIVIL 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 DECISIONOF 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, EsquirePa. I.D. No. 86058

    Caputo, Caputo & Regan, P.C. Buhl Building, 5th Floor204 Fifth AvenuePittsburgh, PA 15222412- 325- 0693412- 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 thepenalties 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 ESQUIRE610 SMITHFIELD STREETSUITE 300PITTSBURGH PA 15222

    RE: License No. R- 19377LID No. 67077Ohio 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 andMarch 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 anyapplication 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 thegas 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 the

    licensee for the premises listed in the application, shall be held insafekeeping by the Board pending completion of the premises andverification of full compliance with all statutory requirements.

    AN EQUAL OPPORTUNITY EMPLOYER EXHIBIT PROCEEDS BENEFIT ALL PENNSYLVANIANS

  • 2Mark Flaherty, EsquireJuly 17, 2014

    2. PLCB- 1854TP, " Certification of Completion," affirming all financialarrangements except the costs of construction/ renovations to the licensedpremises were completed as originally reported. Both parties must signand date the Certification of Completion. The Certification of Completionmust be returned to the Board within 15 days of the formal transactioncompletion date ( settlement). Failure to conclude settlement within 30days 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" andrequisite fee.

    PLCB- 1854- TPF, " Certification of Completion," affirming all financialarrangements 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 theinvestigating officer during the final inspection of the premises.

    One photograph at least 4" x 6" in size, of the exterior and main

    servin

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