Weis Mkts., Inc. v. Lancaster Twp.

247 A.3d 1189 (Table)

WEIS MARKETS, INC.

v.LANCASTER TOWNSHIP, Appellant

No. 54 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued: December 8, 2020

Filed: January 13, 2021

Publication Ordered: April 8, 2021

MEMORANDUM OPINION BY JUDGE FIZZANO CANNON

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 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 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 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 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.

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 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...