Boston Concessions Group, Inc. v. Logan Township Board of Supervisors

DISSENTING OPINION BY

President Judge COLINS.

Because the municipality’s denial of the request for intermunicipal transfer of a liquor license to a concession at a family amusement park is supported by substantial evidence, I dissent.

In SSEN, Inc. v. Borough Council of the Borough of Eddystone, 810 A.2d 200 (Pa.Cmwlth.2002), we concluded that appellate review of a municipality's denial of a request for intermunicipal transfer of a liquor license is governed by the Local Agency Law, 2 Pa.C.S. §§ 551-555, 751-754. Where as here, a full and complete record is made before the local agency, the court of common pleas must affirm absent an error of law, constitutional violation, or lack of substantial evidence to support the adjudication. 2 Pa.C.S. § 754.

In order to deny a request for intermun-icipal transfer of a liquor license a municipality must find that approval of the request would adversely affect the welfare, health, peace, and morals of the municipality or its residents. Section 461(b.3) of the Liquor Code,1 47 P.S. § 4-461(b.3). Although as a general rule a licensed establishment is not ordinarily detrimental to the welfare, health, and morals of the inhabitants of a neighborhood, the transfer of a -license will be detrimental where the nature of the establishment will adversely affect the nature and character of the neighborhood. Appeal of Logan Square Neighborhood Association, 102 Pa.Cmwlth. 224, 517 A.2d 581 (1986), petition for allowance of appeal denied, 517 Pa. 612, 536 A.2d 1335 (1987).

Notwithstanding the park management’s permissive treatment of unsupervised alcohol consumption by adults who bring their own alcoholic beverages to the park, the evidence presented before the Logan Township Board of Supervisors constitutes substantial evidence to support its denial of the request. The “neighborhood” in question in this case is a family amusement park attended by great numbers of minors where currently alcoholic beverages are not for sale or available, and an establishment selling and serving alcoholic beverages to adults will undoubtedly affect the nature and character of the park. When the location of the proposed license is a family amusement park, there can be no presumption that a licensed establishment will not be detrimental to the “neighborhood.”

The Board found that despite BCG’s assurances that it would confine the consumption of alcohol to open air pavilions, serve only beer and wine, supervise the consumption of alcohol, and serve alcoholic beverages only during from May to September, BCG was under no contractual or legal obligation to honor those assurances. Park management does not supervise the consumption of alcoholic beverages and lacks the funding to do so. Furthermore, the police chief testified that a survey of other family amusement parks revealed that most do not permit alcohol at all and those that do provide 24-hour security, sell the alcoholic beverages at high prices to discourage use, and strictly limit alcohol *15use to specified areas. Under the substantial evidence standard, the Board’s refusal should be upheld.

For these reasons, I would reverse the trial court’s order.

. Act of April 12, 1951, P.L. 90, as amended.