Subchapter B. LICENSE APPLICATIONS

§ 17.11. License application protests.

 (a)  When location is at issue. When an application has been filed for a new retail liquor license, retail malt or brewed beverage license, importing distributor or distributor license, or the transfer of these licenses to a premises not then licensed, or for the extension of premises of these licenses, a protest may be filed with the Board by the following:

   (1)  A licensee whose licensed premises is located within 200 feet of the premises proposed to be licensed.

   (2)  A church, hospital, charitable institution, school or public playground located within 300 feet of the premises proposed to be licensed.

   (3)  A resident of the neighborhood within a radius of 500 feet of the premises proposed to be licensed.

 (b)  When qualifications of an applicant are at issue. A protest may be filed with the Board by a person having information regarding the qualifications of an applicant for a new retail liquor license, retail malt or brewed beverage license, importing distributor or distributor license, or for the transfer of these licenses to another person or when a corporation or club, as required by Chapter 5 Subchapter G (relating to change of officers of corporations and clubs) submits a change of officers, directors or stockholders.

 (c)  Effect of protest. A protest filed in compliance with this chapter is deemed a valid protest and is public information. Protestants may be called as witnesses to testify as to the fact and nature of the protest, if a hearing is convened.

 (d)  Notice to Board. A valid protest is intended to alert the Board of the fact and nature of protest. A protest will not be considered as establishing the truth of the assertions therein, but the Board may consider valid protests in determining what action is appropriate.

 (e)  Need to intervene. Only valid protests brought under subsection (a), relating to when location is at issue, render the protestant a party to the proceeding. A separate petition to intervene is not required for this purpose. Other protestants, including those objecting to the qualifications of an appellant, shall file a petition to intervene under § §  17.12 and 17.13 (relating to intervention in license application matters; and protests/intervention procedures), in order to become a party.

 (f)  Public file. A valid protest shall be placed into a public file associated with, but not part of, the record upon which the decision of the Board is made.

   The provisions of this §  17.11 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.

   Parties

 (a)  A person who can demonstrate a direct interest in an application for a new retail liquor license, retail malt or brewed beverage license, importing distributor or distributor license, or the transfer of these licenses, whether person-to-person, place-to-place, or both, or an extension of premises of these licenses, and who can further demonstrate that a Board decision contrary to the person’s direct interest will cause the person to be aggrieved may file a petition to intervene.

 (b)  The petition to intervene may be granted at the discretion of the Board. The Board may grant or deny the petition in whole or in part or may authorize limited participation. In rendering its decision, the Board will consider whether the petitioner has a direct interest in the proceeding and will be aggrieved by a Board decision contrary to that direct interest.

   The provisions of this §  17.12 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.

   Intervenor

   Trade association of beer distributors had standing to petition to intervene in licensing proceedings in which the Liquor Control Board granted application for a double transfer of an eating place malt beverage license to premises on which a restaurant, convenience store, and gas station would operate since the association showed sufficient harm from the license application and its members are within the group regulated and protected by the applicable statutory scheme. MBDA v. Liquor Control Bd., 881 A.2d 37, 42 (Pa. Cmwlth. 2005).

   A person not a party to a license transfer proceeding under the Liquor Code may petition to intervene, and will be permitted to do so upon a showing that the petitioner may be aggrieved by the outcome of the hearing. To demonstrate that she is aggrieved, the petitioner must have a direct and substantial interest in the adjudication, and must show a sufficiently close causal relation between the decision and the asserted injury. Where the petitioner provided evidence of negative impact from the past and present operation of the licensed establishment, and the petitioner resides within 500 feet of the premises, the petition to intervene should be granted. Burns v. Rebels, Inc., 779 A.2d 1245 (Pa. Cmwlth. 2001).

 (a)  Form. A protest or petition to intervene shall be substantially in the following form and shall contain:

   (1)  The identity of the protestant or petitioner—name, address and telephone number.

   (2)  The matter to which the protest or petition is addressed.

   (3)  A concise statement of the objections, including the legal basis for consideration as a valid protest, if applicable.

   (4)  In addition to the requirements in paragraphs (1)—(3), petitions to intervene shall contain the following:

     (i)   A statement of the direct interest of the petitioner in the proceeding.

     (ii)   A description of how the petitioner will be aggrieved in the event of a Board decision contrary to the petitioner’s direct interest.

 (b)  Time. A petition to intervene shall be filed with the Board within 30 days of the posting of notice of application as required by Chapter 3 Subchapter B (relating to notice posting). The Board may accept an untimely filed protest or petition to intervene, but only upon good cause shown.

 (c)  Notice. A petition to intervene shall be served upon the applicant in compliance with 1 Pa. Code § §  33.31—33.37 (relating to service of documents). With respect to a valid protest as determined by the Board, service upon a party is not required. The Board will notify the applicant of a valid protest if a hearing is convened.

 (d)  Action or petition to intervene. An answer to a petition to intervene or protest is not required.

 (e)  Hearings. When the Board orders a hearing, valid protestants and those who have been granted status as intervenors will be notified of the time and place of the hearing at least 10 days in advance of the hearing. The Board will render its decision based upon the record. Failure to appear or testify at the hearing may remove the reasons for protest or intervention from the Board’s consideration.

 (f)  Limitation of participation in hearing. If the Board determines that two or more protestants or intervenors have substantially similar interests and positions, the Board may indicate the similarity of interests in the notice of hearing and direct that one or more persons testify as representative of the similar interests. Designated representatives shall advise the Board at the time of hearing. If no designation has been effected, the Board will select a representative protestant or intervenor, or permit all or a portion of the group to testify as time permits or as appropriate under the circumstances.

 (g)  Supersession. This section supersedes 1 Pa. Code § §  35.23—35.41 (relating to protest; intervention; and answers).

   The provisions of this §  17.13 adopted December 27, 1991, effective December 28, 1991, 21 Pa.B. 5935.

   Form

   A party, who failed to raise an issue in its original protest, waived the issue and could not thereafter raise the issue in a supplemental protest well after the 30-day deadline for filing protests. Pittsburgh Stake of the Church of Jesus Christ of Latter Day Saints v. Liquor Control Board, 617 A.2d 843 (Pa. Cmwlth. 1992).

   Petition to Intervene

   It was clear to the Liquor Control Board that this was an application for a person-to-person transfer and not an application ‘‘for a new retail liquor license’’ or ‘‘the transfer of’’ a retail liquor license ‘‘to a premises not then licensed.’’ This being so, the protestants under Board rules, which it ignored, were required to petition to intervene consistent with the requisites set forth in §  17.13. The record is devoid of any petitions to intervene being filed by these protestors; thus, the participation of the protestants in the hearing before the hearing examiner of the Board was not consistent with established published procedures of the Board and they should not have been permitted to participate as parties. Arrington v. Liquor Control Board, 667 A.2d 439 (Pa. Cmwlth. 1995).

 (a)  Petitions to intervene may be filed with the Board when a municipality has petitioned the Board for exemption from the Board’s regulation regarding the sound of amplified music or other entertainment, or the advertisement thereof, being heard outside of licensed premises.

 (b)  The deadline for filing a petition to intervene with the Board is 7 calendar days before the hearing. In extraordinary circumstances and for good cause, a petition to intervene may be accepted by the Board after the deadline, but not after the hearing begins.

 (c)  A petition to intervene must present proof that the petitioner has a substantial, direct and immediate interest in the outcome of the proceeding. For an interest to be substantial, it means that there is some discernible adverse effect to the petitioner’s individual interest. For the petitioner to have a direct interest, it means that the person claiming to be aggrieved must show the harm to his interest would be caused by the municipality’s enforcement of its own noise ordinance. An immediate interest means that there is a close causal connection between the alleged injury and the grant of the exemption.

 (d)  The Board may allow petitioners to become interveners if the petition also shows the petitioner has an interest of such a nature so that intervention is necessary or appropriate to administration of the Liquor Code and this title. The Board will also consider whether or not the interest asserted in the petition to intervene is adequately represented by existing parties.

   The provisions of this §  17.15 adopted January 5, 2007, effective January 6, 2007, 37 Pa.B. 16.