Penn State Faculty Club v. Commonwealth , 33 Pa. Commw. 320 ( 1978 )

Dissenting Opinion by

Judge Rogers :

I respectfully dissent.

Section 461(b) of the Liquor Code provides that:

(b) The board shall have the power to increase the number of licenses [beyond established quotas] in any such municipality which in the opinion of the board is located within a resort area. (Emphasis added.)

Although the term resort area is not defined by the Legislature in the Liquor Code, the Supreme Court in Willowbrook Country Club, Inc. Liquor License Case, 409 Pa. 370, 373-74, 187 A.2d 154, 155-56 (1962), has provided the following definitions:

‘[A] place frequented in numbers; a popular place of entertainment or recreation’. ... ‘A place of frequent assembly.’

In tbe same case tbe Supreme Court held that the Legislature’s intention in the enactment of Section 461(b) was

to render an equitable distribution or [liquor licenses] in areas, where during certain seasons, the population is increased to such an extent that the usual number of licenses is not adequate to serve the needs of the people. (Emphasis in original.)

Willowbrook, supra, 409 Pa. at 373, 187 A.2d at 155.

By the Willowbrook definition a resort area is necessarily a place where people go to find recreation or entertainment. This Court has held that one characteristic of a resort area is that it experience a seasonal increase of population, Petition of Springdale District Sportsmen’s Association, 20 Pa. Commonwealth Ct. 479, 342 A.2d 802 (1975); that the increase of population must be the result of the visitation of transients, Chukker Valley Golf Club, Inc. v. Pennsylvania Liquor Control Board, 20 Pa. Commonwealth Ct. 321, 341 A.2d 212 (1975); and that the increase in population must be established by specific numerical evidence. Petition of Springfield District Sportsmen’s Association, supra. See also Kennells Mills Sportsmen’s Club, Inc. v. Pennsylvania Liquor Control Board, 20 Pa. Commonwealth Ct. 487, 342 A.2d 809 (1975).

After numerous hearings resulting in a record unusually voluminous for this class of case, the Board’s Hearing Examiner concluded that the facility was located within a resort area and that Pennsylvania State University Faculty members, University people, needed the license. The Hearing Examiner therefore recommended that the Pennsylvania State University Faculty Club’s application be granted. A part only of the Hearing Examiner’s report is as follows:

The principal issue to be determined before the Examiner ... is whether or not the area of the Borough of State College can be properly classified as a resort area by the Board. Substantial testimony was offered by witnesses on behalf of the applicant which indicated that in certain seasons of the year a substantial influx of population occurred with the bulk of the persons using facilities connected with the University on a transient basis. The numerous exhibits offered by applicant through various witnesses substantiated the very large number of individuals attending functions during the summer as well as during other times in the fall of the year in Centre County, Pa. Of particular importance in the finding and determining whether or not Centre County qualifies as a resort area was the testimony of Mr. Christian-sen, who, in the opinion of the Examiner, constitutes an expert in the area of recreational planning and evaluation of recreational facilities. His testimony indicated that the Borough of State College is the nucleus of a resort or recreational in-flow area providing a large number of recreational type and resort type facilities, many of which are connected to the University activities and others which are physically located outside the Borough itself but are services by the Borough, including such things as hunting, fishing, horseback riding, boating, etc.

The second substantial consideration for the Examiner was the question of whether, assuming that the establishment proposed to be licensed is located in a resort area as claimed, that there is necessity for an additional retail clnb liquor license which would provide pleasure and convenience and general welfare for those club members who would make use of the facility. Significant testimony was offered by a number of witnesses regarding the need for both on-campus and satellite campus faculty and administrative personnel as to an actual need for a facility of dhe type requested. Testimony indicated that the businesses presently serving the community were not adequately equipped to supply the need of those persons frequenting the area and in turn, specifically could not provide for those members of the faculty and administration. The Supreme Court of Pennsylvania has interpreted Section 4-461 (b) to mean that the Board is required to predicate the issuance of any license under that Section upon a finding of actual need for the license. Willowbrook Country Club, Inc., 409 Pa. 370, 187 A.2d 154 (1962). The Court reviewed the matter further in the Springdale District Sportsmen’s Association v. Pennsylvania Liquor Control Board — No. 922 C.D. 1974. In that case the Court established four matters for review in determining the question of necessity. (1) The circumstances of the applicant should be viewed with relation to the need of persons making use of the facility. (2) Actual necessity is the need of the area for the additional license. To this end, inquiry should be directed to (a) the number and types of establishments already operating in the area; and (b) the clientel served by the existing licenses; and (c) the clientel 'intended to be served by the applicant. (3) To recognize the distinction between the need of Club Licenses or Club catering licenses in a resort area, for the purposes of its individual members and the needs which qualify the issue of other licenses. (4) Necessity is a legal issue which demands competent evidence in support thereof.

The testimony offered before your Examiner appears to have met all of the qualifications established by the Court in the Springdale case ('Supra). Testimony was offered indicating the need on behalf of members of the faculty and administration for a facility of the type proposed by the applicant, and secondly, sufficient testimony was offered as to the number and types of establishments already operating in the area with clear indication as to the type of clientel served by most of the existing licensees with a distinction being made as to the clientel intended to be served by the applicant. While, as expected, there is a conflict in the testimony between witnesses for the applicant and those testifying on behalf of the State College Tavern Association, it is your Examiner’s opinion that he must give greatest weight and credibility to the testimony of the applicant’s witnesses as there was no credible testimony from any party who could establish that his place of business or residence was located within 500 feet of the proposed licensed establishment. All testimony offered by persons appearing on behalf of the alleged protestants resided beyond the 500 foot area and conducted their business operations in many cases well beyond the 500 foot area.

The only other license presently operating within 200 feet of the proposed establishment is operated by Penn State University who hold a hotel-liquor license trading as the Nittany Lion Inn which is only 40 feet from the proposed premises. The University Trustees have taken a position that they are not in opposition to the proposed granting of this Club license and in fact recommend the acceptance of the application.

The premises are located within 300 feet of a restrictive institution — Pennsylvania State University, which is an educational facility— however, the Board of Trustees has also further indicated that they will not oppose the proposed granting of the license and in fact believe that the same would be of benefit to the University faculty and administration. At the time of the original investigation no written lease had been executed evidencing the right of the proposed applicant to occupy premises which were under construction; however, that problem was remedied prior to the time of the hearing and a written lease was' introduced as applicant’s exhibit #35 and further exhibits were offered, particularly applicant’s exhibit #31, 32 and 33 which indicated that the organization is in fact a nonprofit corporation established to promote the intellectual, professional and social interests of the academic community at Pennsylvania State University and the same has been determined by the Internal Revenue Service to be an exempt social club as set forth under applicant’s exhibit #32.

In summary, the testimony indicates that the University’s sports programs draw ‘in excess of 500,000 people yearly’ to the Borough of State College and in addition there are numerous facilities of a resort area nature within a reasonable driving distance from State College Borough providing camping, fishing, and other outdoor recreational activities. As further evidence of the large number of persons drawn to the community his testimony indicated that there is in excess of 500 hotel and motel guest rooms within 10 miles of the proposed premises, most of which are located within the immediate Borough area. Testimony by the investigating officer indicated that the clientel of existing licensees is primarily ‘a younger crowd connected with the University’ and there was further testimony by many of the witnesses that the existing licensed facilities were not in a position to provide service during certain times of the year- — particularly on football weekends and during other times when great numbers of people were drawn to the University. Additional testimony was offered, however, with respect to the necessity relative to the pleasure, convenience and general welfare of the particular group, ie faculty on-campus and off-campus and administration both on and off campus. Credible testimony was offered by several witnesses that no existing facility located in State College Borough or nearby could offer service on a regular basis that would provide for the pleasure and convenience and general welfare of the Club members that would make use of those facilities. There was testimony indicating that the premises would be located within 200 feet of one other licensed establishment — the Nittany Lion Inn — but the operator of said facility did not enter into any written protest. In addition, testimony indicated that this facility would be located within 300 feet of Pennsylvania State University (an educational institution) but there was no protest entered on behalf of that institution and in fact, testimony indicates that the institution is in favor of granting the proposed application as the same would benefit the University’s faculty and administration.

The Hearing Examiner’s careful evaluation of the evidence on record stands in remarkable contrast to the Board’s decision denying the application, which reads in full as follows:

Opinion

On May 13, 1975, Penn State Faculty Club filed with this Board on a prior approval basis an application for a new club liquor license for premises at University Park, State College, Centre County.

On October 16, November 12 and 20, December 10, 15, 1975 and January 7, 1976, hearings on said application were held after due notice, as required by law. At the said hearings, which were attended by numerous protestants, the protestants’ attorney, numerous witnesses on behalf of the applicant and the applicant’s attorney, the evidence adduced established the following facts:

1. As provided by law, State College, Centre County, has a quota of 16 licenses for the retail sale of alcoholic beverages and there are 22 restaurant liquor licenses in effect of the type counted against the quota. Consequently, the quota for this municipality is exceeded. There are also 5 hotel liquor licenses, 1 club liquor license and 2 catering club liquor licenses in effect which are not counted against the quota.

2. It has not been established that the establishment proposed to be licensed is located in a resort area.

3. It has not been established that there is a necessity for an additional retail liquor license in the Borough of State College, Centre County.

The Board, after giving careful consideration to all of the facts established at the hearing, is of the opinion that the said application for new club liquor license should be refused and makes the following Order:

Order

And Now, June 29, 1976, for the above reasons, it is ordered and decreed that the application for new club liquor license applied for by Penn State Faculty Club for premises at University Park, State College, Centre County, be and it is hereby refused.

The opinion of the court below dismisses the contention that the immediate vicinity of the University’s campus is a resort area by the following paragraph:

If we look within the Borough, it is apparent that a great number of short term visitors attend events on the Penn State campus such as athletic events, conferences and cultural and alumni events. However, to call the Penn State campus a resort area would be an insult to a fine university. The main thrust of the activities associated with the University, with few exceptions, are intellectual in nature and not for vacations or resort purposes. We find it difficult to classifly visitors to the University campus as a seasonal influx of transients or a seasonal increase in population. We therefore affirm the Pennsylvania Liquor Control Board that State College is not within a resort area.

The Pennsylvania State University supports its Faculty Club’s application for a license to serve controlled beverages. For this and other reasons, I am impelled to record my amazement to learn that the lower court and my friends, the majority of this Court, believe that an educational institution is demeaned by the suggestion that it is located in, or indeed that its campus is, a resort area — defined by the Pennsylvania Supreme Court as a “popular place of entertainment or recreation.” Who would say that the Company of the Metropolitan Opera is debased by the fact that it performs to full houses? I also believe that the people of Lewistown, Mifflintown and Thompson-town would be astonished to discover that the persons travelling through their communities to and from the Borough of State College on Fall weekends are seeking intellectual, not recreational, satisfactions. I agree that the seasonal influx of students would not make every college town a resort area; I strongly believe, however, that the highly popular cultural, recreational, theatrical and athletic offerings of the Pennsylvania State University, together with the University’s location far from the State’s two great cities, constitute its locality “a place frequented in numbers,” “a popular place of entertainment and recreation” and “a place of frequent assembly” — in short, a resort area.

This record clearly establishes that Pennsylvania State University’s programs attract visitors from other places on a seasonal basis far in excess of the 5,000 to 6,000 annual influx which satisfied the Supreme Court in Willowbrook, supra. In 1975, the University’s football games alone were attended by more than 300,000 persons, 100,000 of whom came from places other than Centre County.

Since the record also clearly demonstrates a need for the additional license sought by the members of the Pennsylvania State University Faculty Club, I would reverse the order below and direct the Board to issue the license.