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PA SUPREME COURT DECISION IN SHEETZ

June 16, 2009


On June 15th the Pennsylvania Supreme Court, in a 5-1 opinion, held that the Sheetz, Altoona, restaurant/convenience store/gas station is not entitled to a retail dispenser license to sell beer. This decision upholds the Commonwealth Court decision issued in February, 2007. Sheetz, in the hearing on its license before the PLCB, had made clear that it would not sell beer for on-premises consumption but only for take-out. Commonwealth Court and now the Supreme Court have both held that take-out only policy is illegal under the Liquor Code. The Court agreed with MBDA's arguments that:

(a) Allowing a retail dispenser to sell for take-out purposes only "affords [Sheetz] the benefits of a distributor license without imposing the accompanying restrictions" and allows it to "act as a distributor...yet not be burdened with the restriction of selling by the case."

(b) Allowing Sheetz to operate in that fashion would "infringe upon the market niche legislatively carved for the distributor" and would "expand the character of retail dispenser outlets to encompass commecial entities, unlike hotels, restaurants, clubs and eating places, which do not currently engage in the sale of alcohol."

(c) Any such expansion as mentioned in (b) is a policy determination for the legislature.

(d) The PLCB used a "loophole" to issue a license to Sheetz.

(e) Using such a loophole "far more commercial facilities, which were never clearly contemplated by the Legislature to sell beer through any provision of the [Liquor] Code, could be licensed to sell six-packs."

(f) The PLCB's interpretation of a retail dispenser "is contrary to the clear legislative scheme regarding beer distribution."

We await comment from the PLCB as to the effect this decision will have on other pending license protests MBDA has filed against Wegmans, Weis, Giant Eagle, Whole Foods and others. It should be noted that the law firm representing Sheetz is the same firm representing Wegmans and virtually every other supermarket in their quests for licenses to sell beer from what they call their "restaurants" but what are in truth no more than tthe beer aisle of their supermarkets.

MBDA is optimistic that this decision is a predictor of good news on the Wegmans and other supermarket cases, but we will need to be patient and await Supreme Court action on those cases. We thank each and every contributor to the Legal Defense Fund. Without your support this result could never have been achieved.

 
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