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AWT Beaver Independence Deli6/10/2005
The Pennsylvania Liquor Control Board (Board) and the Township of Independence, Beaver County, Pennsylvania (Township), appeal respective orders of the Court of Common Pleas of Beaver County (common pleas) that reversed the Township's and the Board's denials of applications by AWT Beaver Independence Deli, Inc. t/a Beaver Independence Deli (AWT), for approval of an intermunicipal transfer of a liquor license pursuant to Section 461(b.3) of the Liquor Code (Code).
Section 461 provides in pertinent part:
An intermunicipal transfer of a 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 exceed one license per three thousand inhabitants. Upon request for approval of an intermunicipal transfer of a license or issuance of an economic development license by an applicant, at least one public hearing shall be held by the municipal governing body for the purpose of receiving comments and recommendations of interested individuals residing within the municipality concerning the applicant's intent to transfer a license into the municipality . . . . The governing body shall, within forty-five days of a request for approval, render a decision by ordinance or resolution to approve or disapprove the applicant's request for an intermunicipal transfer of a license . . . . The municipality must approve the request unless it finds that doing so would adversely affect the welfare, health, peace and morals of the municipality or its residents. A decision by the governing body of the municipality to deny the request may be appealed to the court of common pleas in the county in which the municipality is located.
47 P.S. § 4-461(b.3) (emphasis added).
This is not the first time this matter has been before this court. In March 2001, Anthony W. Thomas, sole stockholder and officer of AWT, submitted an application in his own name for an intermunicipal transfer of the same license and location as those in the current proceedings. The Township held a public hearing and subsequently denied the request for municipal approval. After a hearing before the Board, the Board remanded the case to the Township for another public hearing pursuant to Section 461. After the second public hearing, the Township again denied approval, concluding that the transfer would have an adverse affect on the health, welfare, peace and morals of the Township. The Board then denied the transfer application for failure to obtain municipal approval. Thomas appealed the Board's decision to common pleas, but never appealed the decision of the Township refusing municipal approval. The Township filed a Petition to Intervene and then filed a Motion to Quash the Appeal. Common pleas granted the Township's Motion to Quash, concluding that pursuant to Section 461, Thomas should have appealed from the decision of the Township, and not that of the Board. See In re Application for Liquor License of Anthony W. Thomas, (C.C.P. Beaver County, No. 78 Misc. 2002, filed October 1, 2002). Our court affirmed, determining that Thomas failed to properly appeal the Township's decision. See In re Application for Liquor License of Anthony W. Thomas (Thomas I), 829 A.2d 410 (Pa. Cmwlth. 2003), appeal denied, 577 Pa. 699, 845 A.2d 819 (2004).
On December 5, 2003, AWT filed the instant application with the Board for intermunicipal transfer of the same liquor license pursuant to Section 461. The Board returned the application to AWT, indicating that Section 461 of the Code required that municipal approval of Independence Township (the receiving municipality) be at
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