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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 y
vs. ) PETITION FOR APPEAL FROM
DECISION OF PENNSYLVANIA
LIQUOR 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 Floor
204 Fifth Avenue
Pittsburgh, PA 15222
412- 325- 0693
412- 690-2350 ( facsimile)
info@caputolawoffice.com
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C,ILA aosL1g
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL 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 DECISION
OF 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, Esquire
Pa. I.D. No. 86058
Caputo, Caputo & Regan, P.C.
Buhl Building, 5th Floor
204 Fifth Avenue
Pittsburgh, PA 15222
412- 325- 0693
412- 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 the
penalties 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 ESQUIRE
610 SMITHFIELD STREET
SUITE 300
PITTSBURGH PA 15222
RE: License No. R- 19377
LID No. 67077
Ohio 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 and
March 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 any
application 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 the
gas 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 thelicensee for the premises listed in the application, shall be held in
safekeeping by the Board pending completion of the premises and
verification of full compliance with all statutory requirements.
AN EQUAL OPPORTUNITY EMPLOYER EXHIBIT PROCEEDS BENEFIT ALL PENNSYLVANIANS
2
Mark Flaherty, Esquire
July 17, 2014
2. PLCB- 1854TP, " Certification of Completion," affirming all financial
arrangements except the costs of construction/ renovations to the licensed
premises were completed as originally reported. Both parties must sign
and date the Certification of Completion. The Certification of Completion
must be returned to the Board within 15 days of the formal transaction
completion date ( settlement). Failure to conclude settlement within 30
days of the date of this letter may result in the approval being rescinded.
3. Completion of the premises and compliance with the requirements shall be
accomplished 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" and
requisite fee.
PLCB- 1854- TPF, " Certification of Completion," affirming all financial
arrangements including the costs of construction/ renovations to the
licensed premises were completed as originally reported. If the
financing has been modified the changes will be verified by the
investigating officer during the final inspection of the premises.
One photograph at least 4" x 6" in size, of the exterior and main
serving room. The photographs must have a matte finish.
Documentary evidence that a valid health license is displayed on thepremises. This may be in the form of a photocopy or a written statementfrom the issuing authority.
At the time of the investigation, the premises must be ready for
operation as a bona fide restaurant.
Upon completion of the premises the attached forms should be completed
naming a manager and returned to this office together with the requiredfee. One recent photograph of this individual must also be submitted.
The photograph must have a matte finish.
All above mentioned forms are attached for your client' s convenience. Please retain
for use when construction and/ or alterations are completed.
Your client' s application is being approved in accordance with Section 461 of theLiquor Code which provides, in part, that this license cannot be transferred from the
receiving municipality for a period of five ( 5) years after the date the licensed
premises is operational.
AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
3
Mark Flaherty, Esquire
July 17, 2014
If you intend to conduct any catered functions during the calendar year in which thelicense is released from safekeeping, even though no functions have been scheduled, you
must submit an Application for Off -Premises Catering Permit ( form PLCB- 2403) with the
500. 00 filing fee within sixty ( 60) days of the premises becoming operational. Failure
to submit the application and fee within that sixty ( 60) day period will disqualify youfrom obtaining permits for catered events during that calendar year.
A copy of the Board' s Order is attached.
Please see that your client receives the attached copy of this letter.
Sincerely,
7-7 W . Gu .
Jerry W. Waters, Sr., Director
Office of Regulatory Affairs
Refer to: Licensing Board Case Section717) 787- 6728
Hours: 7: 30 AM to 4: 00 PMJWW: ch
AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
ITRBDPRAPP 07/ 12
pennsyLvaniaLIQUOR CONTROL BOARD
Northwest Office BuildingHarrisburg, Pennsylvania 17124- 0001
uww. Icb. state. pa. us
July 31, 2014
MARK FLAHERTY ESQUIRE
610 SMITHFIELD STREET
SUITE 300
PITTSBURGH PA 15222
AMENDED
RE: License No. R- 19377
LID No. 67077
Ohio 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 and
March 19, 2014, the Pennsylvania Liquor Control Board, at its July 16, 2014 Board Session,
approved the application for " Intermunicipal" double transfer of Restaurant Liquor License
R- 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 any
application 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 the
gas pumps located 80 feet distant and the request for interior connections with an
unlicensed 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 in
safekeeping by the Board pending completion of the premises and
verification of full compliance with all statutory requirements.
AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
2
Mark Flaherty, Esquire
July 31, 2014
2. PLCB- 1854TP, " Certification of Completion," affirming all financial
arrangements except the costs of construction/ renovations to the licensedpremises were completed as originally reported. Both parties must sign
and date the Certification of Completion. The Certification of Completion
must be returned to the Board within 15 days of the formal transactioncompletion date ( settlement). Failure to conclude settlement within 30
days 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" and
requisite fee.
PLCB- 1854- TPF, " Certification of Completion," affirming all financial
arrangements 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 the
investigating officer during the final inspection of the premises.
One photograph at least 4" x 6" in size, of the exterior and main
serving room. The photographs must have a matte finish.
Documentary evidence that a valid health license is displayed on thepremises. This may be in the form of a photocopy or a written statementfrom the issuing authority.
At the time of the investigation, the premises must be ready foroperation as a bona fide restaurant.
Upon completion of the premises the attached forms should be completed
naming a manager and returned to this office together with the requiredfee. One recent photograph of this individual must also be submitted. The photograph must have a matte finish.
All above mentioned forms are attached for your client' s convenience. Please retain
for use when construction and/ or alterations are completed.
Your client' s application is being approved in accordance with Section 461 of theLiquor Code which provides, in part, that this license cannot be transferred from the
receiving municipality for a period of five ( 5) years after the date the licensedpremises is operational.
AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
3
Mark Flaherty, Esquire
July 31, 2014
If you intend to conduct any catered functions during the calendar year in which thelicense is released from safekeeping, even though no functions have been scheduled, you
must submit an Application for Off -Premises Catering Permit ( form PLCB- 2403) with the500. 00 filing fee within sixty ( 60) days of the premises becoming operational. Failure
to submit the application and. fee within that sixty ( 60) day period will disqualify youfrom obtaining permits for catered events during that calendar year.
A copy of the Board' s Order is attached.
Please see that your client receives the attached copy of this letter.
Sincerely,
w
Jerry W. Waters, Sr., Director
Office of Regulatory Affairs
Refer to: Licensing Board Case Section717) 787- 6728
Hours: 7: 30 AM to 4: 00 PMJWW: ch
AN EQUAL OPPORTUNITY EMPLOYER PROCEEDS BENEFIT ALL PENNSYLVANIANS
ORDER 11/ 07
BEFORE THE PENNSYLVANIA LIQUOR CONTROL BOARD
OHIO SPRINGS, INC.
Sheetz
359 East King Street
Shippensburg, PA 17257- 1424
Case No. 13- 9164
LID No. 67077
Application filed on a Prior
Approval Basis for
Intetrmunicipal" Double
Transfer of Restaurant Liquor
License R- 19377
The Board, after giving careful consideration to all of the facts established at thehearing, and in the exercise of its discretion, makes the following Order:
ORDER
AND NOW, July 17, 2014, it is ordered and decreed that the Pennsylvania LiquorControl Board approved the application for " Intermunicipal" double transfer of RestaurantLiquor License R- 19377 applied for by Ohio Springs, Inc., Sheetz for premises at 359 East
King Street, Shippensburg, Cumberland County. In the event an appeal is filed an Opinionwill be issued.
Alvin Oberholtzer, Sharon Hershey, Lewis Deardorff, and Luke and Lois Martin should
not be granted standing as intervenors in this matter because they did not attend andtestify at the hearing on how they would be would be directly aggrieved by the approval ofApplicant' s application.
Jaye Alleman should be granted standing as a protestant in the instant matterbecause he resides within 500 feet of the proposed licensed premises.
The Civic Club of Shippensburg should be granted standing as a protestant in theinstant matter because it is a charitable institution that is located within 300 feet ofthe proposed licensed premises.
John Mummau should not be granted standing as an intervenor in this matter becausehe did not provide sufficient non -speculative evidence on how he would be directlyaggrieved by the approval of Applicant' s application.
James Andrews should not be granted standing• as an intervenorhe did not provide sufficient non -speculative evidence on how
aggrieved by the approval of Applicant' s application.
Terry Helm should not be granted standing as an intervenor indid not provide sufficient good cause for his late -filed petition.
Gabler' s Beverage Distributor should be granted standing asmatter based on the Ohio Springs and Wegmans' decisions.
in this matter because
he would be directly
this matter because he
an intervenor in this
Ohio Springs, Inc.
July 17, 2014
PKD, Inc. should be granted standing as an intervenor in this matter based on theOhio Springs and s' decisions.
Malt Beverage Distributors Association should be granted standing as an intervenorin this matter based on the Ohio Springs and Wegmans' decisions.
PENNSYLVANIA LIQUOR CONTROL BOARD
Joseph E. Brion
BY: Chairman
Robert S. Marcus
Member
Tim Holden
Member
ATTEST:
John K. Stark
Secretary
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the within PETITION FOR APPEAL
FROM DECISION OF PENNSYLVANIA LIQUOR CONTROL BOARD was forwarded to
the parties and counsel listed below by facsimile and U.S. Mail, postage prepaid, this 5 th
day of
August, 2014.
Faith S. Diehl, Esquire
Pennsylvania Liquor Control Board
Office of Chief Counsel
401 Northwest Office BuildingCapital and Forster Streets
Harrisburg, PA 17124- 0001
Commonwealth of Pennsylvania
Pennsylvania Liquor Control Board
Bureau of LicensingNorthwest Office Building, Room 108Harrisburg, PA 17124- 0001ATTENTION: Tisha Albert
Mark Flaherty, EsquireFlaherty & O' Hara, P.C.
610 Smithfield Street, Suite 300
Pittsburgh, PA 15222
Charles 1/ Caputo, EsquireCounsel for Petitioner
6
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