              IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Myles Development Company, LLC                    :
                                                  :
                 v.                               :    No. 23 C.D. 2019
                                                  :    Argued: November 12, 2019
Pennsylvania Liquor Control Board,                :
                 Appellant                        :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE CHRISTINE FIZZANO CANNON, Judge
                 HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION
BY PRESIDENT JUDGE LEAVITT                                            FILED: January 16, 2020

                 The Pennsylvania Liquor Control Board (PLCB or Board) appeals an
order of the Court of Common Pleas of Chester County (trial court) that reversed the
PLCB’s decision to deny the application of Myles Development Company, LLC
(Applicant) for an Economic Development Restaurant Liquor License (EDR
License). The PLCB argues that the trial court erred in holding that Applicant
satisfied the requirements for an EDR License in the Liquor Code1 and the PLCB’s
regulations. We affirm.
                                           Background
                 On December 30, 2016, Applicant filed an application for an EDR
License for a six-story building located at 2 West Market Street in the Borough of
West Chester, also known as the Farmers & Mechanics Trust Company Building or
the F&M Building. A. Thomas Myles, IV, is the sole member of Applicant and the
sole member of Myles Land & Improvement Company, LLC, which owns the
property. Applicant intends to open a fine dining restaurant in the basement and first
and second floors of the building. The remaining floors will be leased for offices.

1
    Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §§1-101 – 10-1001.
              By letter dated June 21, 2017, the PLCB’s Bureau of Licensing
(Bureau) notified Applicant that a hearing would be held on July 6, 2017, on the
following objections to the application:

              1. The proposed licensed premises will be located within 200
                 feet of another establishment licensed by this Board.

              2. The Board shall take evidence to determine whether the
                 [A]pplicant exhausted reasonable means in an effort to find a
                 suitable license within the current county quota scheme,[2] in
                 accordance with Section 3.105 of the Board’s Regulations.
              3. The Board shall take evidence to determine that the approval
                 of this application will not adversely affect the health,
                 welfare, peace and morals of the neighborhood within a
                 radius of 500 feet of the proposed licensed premises.

Reproduced Record at 94a (R.R. __).
              At the hearing, the PLCB’s licensing analyst testified that Barnaby’s
West Chester, Inc. (Barnaby’s), a bar and restaurant, is located across the street and
approximately 60 feet away from the F&M Building. It is the only establishment
with a liquor license that is within 200 feet of Applicant’s property. Myles discussed
his planned restaurant and his unsuccessful efforts to purchase a retail restaurant
liquor license by sending letters of inquiry to the holders of 142 active licenses and




2
  The issuance of liquor licenses in Pennsylvania is governed generally by a quota system. See
generally Section 461 of the Liquor Code, 47 P.S. §4-461 (Limiting number of retail licenses to
be issued in each county). The PLCB is authorized to issue a limited number of EDR Licenses in
a county outside of the quota system “for the purpose of economic development in a municipality”
under certain enumerated conditions discussed more fully below. 47 P.S. §4-461(b.1).
                                               2
15 licenses in safekeeping.3 Myles also testified that the West Chester Borough
Council had approved the EDR License, subject to several conditions.4
               After the hearing, the hearing examiner issued an opinion
recommending that the PLCB deny Applicant’s application on the basis that it had
not exhausted reasonable means of procuring a license within the county quota
system. The hearing examiner noted the presence of another licensed establishment,
Barnaby’s, within 200 feet of the property, but determined this was not a basis for
denying the application because “[t]here was no evidence presented that this would
create any problems for the neighborhood[.]” R.R. 390a.5
               By order dated August 23, 2017, the PLCB denied Applicant’s
application for an EDR License. On September 1, 2017, Applicant appealed the
PLCB’s order to the trial court. On November 2, 2017, the PLCB filed an opinion

3
 A liquor license may be placed in safekeeping with the PLCB pursuant to Section 474.1(a) of the
Liquor Code, added by the act of December 9, 2002, P.L. 1653, as amended, which states:
         (a) A restaurant, eating place retail dispenser, hotel, importing distributor and
        distributor licensee whose licensed establishment is not in operation for fifteen
        consecutive days shall return its license for safekeeping with the board no later than
        at the expiration of the fifteen-day period. The license may only be reissued from
        safekeeping in the manner set forth by the board through regulation.
47 P.S. §4-474.1(a). The PLCB’s regulation provides that “[t]he return of the license and card will
not invalidate the license, which will be held in safekeeping for the benefit of the licensee and be
available for his use when operations are resumed at the licensed premises, or for transfer.” 40 Pa.
Code §7.31(a).
4
  The Borough Council found that “the issuance of the [EDR License] for the Restaurant will
promote economic development within the Borough by enabling a new fine dining restaurant in
the Borough which will provide employment and attract customers and patrons to other businesses
in the Borough.” Trial Court Opinion at 3. Applicant agreed to the following conditions in an
agreement with the Borough Council: food and non-alcoholic beverage sales of at least 60% of the
restaurant’s business; sale of alcohol to stop at 12:30 a.m.; premises to close no later than 1:30
a.m.; no live music or entertainment on the premises; and all owners and managers and all
individuals who sell or serve alcoholic beverages must successfully complete the PLCB’s
Responsible Alcohol Management Program (RAMP).
5
  Neither Barnaby’s nor any other existing licensee protested Applicant’s application.
                                                 3
in support of its order stating, inter alia, that it had denied the application based on
Applicant’s failure to exhaust reasonable means to find a license within the county
quota system. Additionally, and contrary to the recommendation of the hearing
examiner, the PLCB stated that it had, in its discretion, denied Applicant’s
application based on the proximity of Barnaby’s to the proposed licensed premises.
             On October 3, 2018, the trial court held a de novo hearing at which
Patrick Stapleton, Esquire, a former member and chair of the PLCB, testified on
behalf of Applicant. While on the PLCB, Stapleton reviewed and voted on “no less
than a couple hundred” applications for EDR Licenses. Notes of Testimony,
10/3/2018, at 28 (N.T. __); R.R. 429a. Stapleton focuses more than half of his
practice on liquor and beverage law, and he has represented applicants for EDR
Licenses in the Borough and elsewhere in Chester County.
             Stapleton testified that the Borough has agreed to allow EDR Licenses
“over the past number of years.” N.T. 28; R.R. 429a. Stapleton testified, based on
his experience, that the Borough in practice “refuse[s] to accept licenses - regular R,
restaurant licenses from other municipalities in Chester County.” N.T. 28; R.R.
429a. After briefly explaining recent legislative changes to intermunicipal transfers
of liquor licenses, Stapleton attempted to testify that the Borough has “taken the
position” not to allow intermunicipal transfers. N.T. 29; R.R. 430a. The PLCB
objected to this statement as hearsay, and the trial court sustained the objection.
             Stapleton testified that a recent amendment to the Liquor Code allows
the PLCB to auction off expired liquor licenses. He explained that this has changed
the EDR License application process. In practice, an applicant must show that it
attempted to participate in an auction in order to establish that it exhausted
reasonable means to obtain an existing license. Stapleton further testified that,


                                           4
during the relevant timeframe for Applicant’s application, only seven licenses were
available at auction in Chester County, and none were in the Borough of West
Chester. Because the Borough will not allow intermunicipal transfers of liquor
licenses, the availability of these licenses for auction did not matter.
             A. Thomas Myles testified about his efforts to obtain a license through
the county quota system before applying for an EDR License. Myles and his
attorney personally spoke with restaurant licensees and individuals with knowledge
of restaurant licenses for sale within the Borough. None of these discussions bore
fruit. Myles never made an offer to purchase a license because there were none
available within the Borough. Because of the Borough’s practice of refusing
intermunicipal transfers of licenses, Myles concluded there was no point in seeking
a license outside the Borough. After his initial efforts to purchase a restaurant liquor
license within the Borough were unsuccessful, Myles sought and received approval
from the Borough Council to pursue an EDR License.
             After gaining approval from the Borough Council, counsel for
Applicant sent a letter to every restaurant liquor licensee in Chester County,
including all licensees whose licenses were in safekeeping. The letter stated:

             Dear Licensee:

             Please be advised that a client of mine is interested in purchasing
             your R-Liquor License. Kindly contact this office at your
             earliest convenience if you are interested in discussing the
             sale of the above-referenced Liquor License.

             Thank you for your time and consideration. I look forward to
             hearing from you.

R.R. 150a (emphasis in original).



                                           5
             Applicant received responses from 11 licensees, none of which had
licenses in the Borough. Nevertheless, Applicant followed up with all of them.
Myles testified that each licensee that responded was willing to sell their license only
as part of a sale of their entire business, which included the real estate in some cases.
None of the licensees were willing to sell the restaurant liquor license alone. Myles
testified that Applicant could not afford to purchase both a liquor license and an
entire business, and he offered supporting financial evidence.
             Myles testified that he reviewed the PLCB’s listings of liquor licenses
that were available for purchase at auction. None of the listings included a restaurant
liquor license within the Borough. Myles did not bid on any restaurant liquor
licenses located outside the Borough because of the Borough’s practice of refusing
intermunicipal transfers of liquor licenses.
             On December 14, 2018, the trial court reversed the PLCB’s denial of
Applicant’s application and ordered the PLCB to issue the EDR License.
             The trial court held that Applicant had exhausted all reasonable means
to find a license within the existing county quota system. The trial court observed
that Applicant had contacted every licensee in Chester County to inquire about the
availability of its license for purchase, which is all the PLCB regulation requires.
All of the licensees responding to Applicant required the purchase of the business
associated with the liquor license. Applicant was not in a financial position to
consummate such a transaction, and it was not required under the regulation. The
trial court noted that Applicant considered purchasing a license at auction, but there
were no auctions of licenses within the Borough. Although there were licenses
available for auction in Chester County, the trial court found they were not actually
available to Applicant given Stapleton’s testimony that the Borough will not approve


                                           6
the transfer of a license from another municipality. The trial court noted that the
PLCB presented no evidence to refute Stapleton’s testimony. The trial court rejected
the PLCB’s argument that Applicant had recourse through an appeal of the
Borough’s denial of a transfer, holding that purchasing a license that is likely not to
be accepted by the municipality cannot be considered a “reasonable means” of
finding a suitable license.        Trial Court Opinion at 10 (quoting 40 Pa. Code
§3.105(e)).
               The trial court also decided that the proximity of the proposed licensed
premises to Barnaby’s was not a basis for denying Applicant’s application because
there was no evidence that issuing an EDR License to Applicant would be harmful
to the community. The trial court cited the PLCB’s finding that there was no
evidence there would be any problems for the neighborhood and that the Borough
Council was aware of Barnaby’s when it approved the EDR License. The PLCB
now appeals the trial court’s order.
                                            Appeal
               On appeal,6 the PLCB raises two issues. First, it argues that the trial
court’s finding that Applicant exhausted reasonable means to find a suitable license
within Chester County’s quota system is not supported by substantial evidence.
Second, it contends that the trial court erred in concluding that the presence of
another licensed establishment within 200 feet of the proposed licensed premises
was not in itself a basis for denying Applicant’s application for an EDR License.




6
 Where a trial court hears a liquor license matter de novo, our review determines whether there is
substantial evidence to support the trial court’s findings or whether the trial court committed an
error of law or abused its discretion. Domusimplicis, LLC v. Pennsylvania Liquor Control Board,
202 A.3d 836, 840 n.7 (Pa. Cmwlth. 2019).
                                                7
                                            Analysis
               Pursuant to Section 464 of the Liquor Code, a trial court conducts de
novo review of the PLCB’s grant or denial of a license. 47 P.S. §4-464.7 As such,
it may “sustain or over-rule the action of the [PLCB] and either order or deny the
issuance of a new license[.]” Id. A de novo review “contemplates an independent
evaluation of the evidence.” Domusimplicis, LLC v. Pennsylvania Liquor Control
Board, 202 A.3d 836, 841 (Pa. Cmwlth. 2019) (quotation omitted). When the trial
court conducts a de novo review, it “is not restricted to reviewing the established
record and may hear new evidence and make independent findings of fact and
conclusions of law.” Id.
               “Regardless of whether substantial evidence supports the PLCB’s
findings, the trial court may reverse a PLCB decision to deny a license provided its
own findings are supported by substantial evidence in the record as a whole.” Id.
(citation omitted). “Indeed, in exercising its statutory discretion, the trial court may
reverse the PLCB based on identical findings and even when the evidence it hears is
substantially the same as the evidence presented to the PLCB.”                       Id. (citation
omitted).
               The issuance of liquor licenses is governed by a quota system. Section
461 of the Liquor Code, 47 P.S. §4-461. Chester County, like most counties, has
exceeded its quota. Thus, the PLCB is generally prohibited from issuing new liquor

7
 Section 464 states, in pertinent part:
        The court shall hear the application de novo on questions of fact, administrative
        discretion and such other matters as are involved, at such time as it shall fix, of
        which notice shall be given to the [B]oard. The court shall either sustain or over-
        rule the action of the [B]oard and either order or deny the issuance of a new license
        or the renewal or transfer of the license or the renewal of an amusement permit to
        the applicant.
47 P.S. §4-464.
                                                 8
licenses there. An applicant seeking a new liquor license must obtain an existing
license (1) from an existing license holder; (2) from the PLCB via its periodic
auction of expired licenses; or (3) from outside the quota system via a narrow
exception in the Liquor Code authorizing the PLCB to issue an EDR License.
               Pursuant to Section 461(b.1) of the Liquor Code, the PLCB can issue
an EDR License only where specific conditions are met:

               (b.1) The board may issue restaurant and eating place retail
               dispenser licenses and renew licenses issued under this
               subsection without regard to the quota restrictions set forth in
               subsection (a) for the purpose of economic development in a
               municipality under the following conditions:
                       (1) A license may only be issued under this
                       subsection if the applicant has exhausted reasonable
                       means for obtaining a suitable license within the
                       county.
                       (2) The proposed licensed premises must be located
                       within either of the following:

                                                     ***
                               (ii) A municipality in which the
                               issuance of a restaurant or eating place
                               retail dispenser license has been
                               approved by the governing body of the
                               municipality for the purpose of local
                               economic development….

47 P.S. §4-461(b.1).8 In Chester County, which is a county of the third class, the
PLCB may issue a maximum of two EDR Licenses per calendar year. 40 Pa. Code
§3.105(a).


8
 There is no dispute that Applicant satisfied Section 461(b.1)(2)(ii) by first obtaining West Chester
Borough Council’s approval of an EDR License for its proposed restaurant.
                                                 9
             Section 3.105(e) of the PLCB’s regulations explains how an applicant
for an EDR License proves that it “exhausted reasonable means for obtaining a
suitable license,” per 47 P.S. §4-461(b.1)(1):

             (e) In addition to any objections to, or support of, an application
             for the issuance of a license, an applicant shall provide evidence
             at the administrative hearing that it has exhausted reasonable
             means to find a suitable license within the existing county quota
             law. Evidence includes the following:

                   (1) Evidence that the applicant, or the applicant’s
                   agent, made contact with existing restaurant liquor
                   licensees, if a restaurant liquor economic
                   development license is sought … in the county.
                          (i) The purpose of the contact is to
                          inquire as to the availability of the
                          licensee’s license for purchase.

                          (ii) In counties of the first through
                          fourth class, the number of licensees
                          contacted by the applicant, or the
                          applicant’s agent, must be equal to or
                          greater than 50% of the existing
                          restaurant liquor … licensees in the
                          county.

                                           ***
                   (2) Evidence that the applicant, or the applicant’s
                   agent, has offered to purchase [] restaurant liquor …
                   licenses in the county that are in safekeeping at the
                   time the application is filed with the Board,
                   including the offered and requested amounts.
                   (3) An explanation as to why it is not economically
                   feasible for the applicant business to pay the amount
                   requested for an existing restaurant liquor or eating
                   place retail dispenser license. The applicant shall
                   provide evidence of the following factors:
                                         10
                          (i) The applicant’s        capital   and
                          financial resources.

                          (ii) The applicant’s projected revenue
                          and expenses for its business, as well
                          as actual revenue and expenses if the
                          business is currently in operation.

                          (iii) Other    factors the applicant
                          considered     when deciding that
                          obtaining a    liquor license in the
                          marketplace    was not economically
                          feasible.

                    (4) A written estimation, with supporting
                    documentation, of the expected economic benefits
                    to the municipality if the application is granted.

40 Pa. Code §3.105(e).
             With the above legal framework in mind, we consider the PLCB’s
issues seriatim.
                                          I.
             The PLCB’s primary issue is that the trial court’s finding that Applicant
exhausted reasonable means to find a suitable license within Chester County’s quota
system is not supported by substantial evidence.
             The PLCB asserts that there is no evidence Applicant satisfied Section
3.105(e)(2) of the regulation, which requires an applicant to offer to purchase a
license held in safekeeping with the PLCB. Applicant sent letters of inquiry to every
licensee in the Borough, but it did not produce evidence of any offer to purchase a
license in safekeeping. Applicant did not even specify how many of the 11 responses
it received pertained to active licenses versus licenses in safekeeping.




                                          11
                 The PLCB also argues that the trial court erred in finding that Applicant
could not have successfully transferred a license into the Borough because the
evidence of record does not support such a finding. Although Applicant’s witness,
Patrick Stapleton, testified that the Borough would refuse any intermunicipal
transfer application, neither he nor Applicant offered supporting statistics or records.
No one from the Borough appeared at the hearing to explain the Borough’s position
on transfers. Relatedly, the PLCB argues that the trial court erred by basing two of
its findings of fact9 on hearsay statements that Applicant tried to elicit from both
Myles and Stapleton regarding the Borough’s position on intermunicipal transfers.
                 Finally, the PLCB argues that even if the Borough disapproved an
intermunicipal license transfer, Applicant could have appealed that decision to the
trial court and ultimately to this Court. In other words, because Applicant had a path
to licensure if the Borough rejected its application, it did not need to pursue an EDR
License.
                 In short, the PLCB asserts that the trial court, by agreeing with
Applicant that licenses outside the Borough were unavailable to Applicant, relieved
Applicant of its duty to exhaust reasonable means of acquiring a license outside the
Borough, whether on the open market or via a PLCB auction. We disagree.




9
    The challenged findings state:
       19. West Chester Borough would not accept a liquor license from any other
       municipality in Chester County. (N.T. 10/3/2018, 18; 28).
                                               ***
       25. [Applicant] did not attempt to purchase a liquor license at auction from another
       municipality in Chester County because West Chester Borough would not permit a
       transfer of the license. (N.T. 10/3/2018, 18; 28).
Trial Court Opinion at 5.
                                               12
               Section 3.105(e)(2) of the regulation does, as the PLCB asserts, require
evidence that the applicant has offered to purchase a restaurant liquor license in the
county in safekeeping, including the offered and requested amount. 40 Pa. Code
§3.105(e)(2). However, the trial court credited Myles’ unrefuted testimony that none
of the licensees that responded to his letters of inquiry, including those with licenses
in safekeeping, would sell their liquor license apart from the business to which the
license was attached. We agree with the trial court’s statement that “Section 3.105(e)
does not require [Applicant] to purchase a separate business and additional real
estate in order to acquire a liquor license.” Trial Court Opinion at 9. Nor does it
require an attempt to do so. Applying Section 3.105(e)(2) as suggested by the PLCB
would lead to the absurd result of requiring an applicant to offer to purchase a license
in safekeeping that is not available as a standalone commodity. A licensee cannot
be expected to engage in an exercise in futility.10
               We next consider the PLCB’s claim that substantial evidence does not
support the trial court’s finding that West Chester Borough would not approve an
intermunicipal license transfer. We disagree. Stapleton testified, based on his
considerable experience as a former member and chair of the PLCB and as counsel
to applicants for liquor licenses, that the Borough “refuse[s] to accept licenses –
regular R, restaurant licenses from other municipalities in Chester County.” N.T. 28;
R.R. 429a. Myles offered similar testimony to explain why he did not make an offer
for a license outside the Borough or bid on an auction of an expired license outside
the Borough. The trial court credited this evidence, and the PLCB did not offer any

10
  This is similar to the result in Domusimplicis, 202 A.3d 836, where this Court affirmed the trial
court’s grant of an EDR License in West Chester Borough. We explained that because the trial
court credited the testimony of the applicant’s agent that the only licenses in the Borough that were
in safekeeping were not for sale, it was unnecessary for the applicant to make vain offers to
purchase the unavailable licenses.
                                                13
evidence to show the contrary, i.e., that the Borough will accept intermunicipal
license transfers. The PLCB is really challenging the weight accorded to Applicant’s
evidence, which is beyond this Court’s scope of review.
             Relatedly, the PLCB argues that the trial court’s finding that the
Borough would not permit the transfer of a liquor license into the Borough is not
supported by substantial evidence because it is based on hearsay testimony to which
the PLCB properly objected. However, the PLCB is conflating two distinct points
of testimony before the trial court, one of which was not objected to by the PLCB.
             The PLCB objected to Stapleton’s testimony that the Borough Council
has a “position” against permitting transfers of liquor licenses into the Borough, and
the trial court sustained the objection on hearsay grounds. N.T. 29-30; R.R. 430a-
31a. Although the PLCB objected to “that last part of [Stapleton’s testimony] as
hearsay,” N.T. 29; R.R. 430a, it did not object to Stapleton’s prior statement that the
Borough has an actual practice of denying transfers of liquor licenses into the
Borough. N.T. 28; R.R. 429a. The objected-to testimony about the Borough’s
“position,” which was premised on an out-of-court statement by a third party, was
materially different from Stapleton’s testimony about the Borough’s actual practice,
which was based on his experience. Moreover, it bears noting that an entirely
different subject of testimony, i.e., Stapleton’s synopsis of legislative changes to
license transferal, chronologically separated the two statements.
             Furthermore, the trial court did not base any of its factual findings on
the objected-to testimony about the Borough’s “position.” The relevant findings on
license transfers in the Borough refer only to the Borough’s practice. See Trial Court
Opinion at 5, Finding of Fact No. 19 (finding that the Borough “would not accept”
an intermunicipal license transfer) and Finding of Fact No. 25 (finding that the


                                          14
Borough “would not permit” such a transfer). Both of these findings cite to the page
of testimony where Stapleton testified as to the Borough’s actual practice, not the
page where Stapleton attempted to testify that the Borough has taken a “position” on
transfers. Stapleton’s testimony regarding the Borough’s actual practice in handling
intermunicipal license transfers was relevant and material to whether Applicant
exhausted reasonable means to obtain a liquor license within Chester County’s quota
system.
             Finally, the PLCB asserts that the Borough Council’s refusal to allow
the intermunicipal transfer of a license could be appealed by right to the trial court
and, ultimately, this Court. In other words, Applicant had a path to licensure through
the courts if it chose to purchase a license outside the Borough. This argument is
unpersuasive. It ignores the issue at hand, which is whether substantial evidence
supports the trial court’s finding of fact that Applicant exhausted reasonable means
to obtain a liquor license within the quota system. Moreover, requiring an applicant
to purchase a liquor license and make a futile application for an intermunicipal
transfer with the hope of one day prevailing in court goes far beyond “reasonable
means” of procuring a suitable license.
                                          II.
             In its second issue, the PLCB argues that the trial court erred and abused
its discretion in finding that the presence of another licensed establishment,
Barnaby’s, within 200 feet of Applicant’s property was not, in itself, a basis to deny
the application. The PLCB asserts that the trial court erred by requiring additional
evidence of harm to the neighborhood in order to reject the application on this basis.
             Section 404(a) of the Liquor Code gives the PLCB discretion to deny a
liquor license application “if such new license … is applied for a place which is


                                          15
within two hundred feet of any other premises which is licensed by the board[.]” 47
P.S. §4-404(a). However, an application is not automatically disqualified because
of the premises’ proximity to other licensed establishments. Domusimplicis, 202
A.3d at 841; Chadds Ford Tavern, Inc. v. Pennsylvania Liquor Control Board, 736
A.2d 70, 73 (Pa. Cmwlth. 1999). A trial court conducting de novo review of an
application has discretion to determine whether to deny the application based on the
premises being closer than 200 feet to a licensed establishment. Section 464 of the
Liquor Code, 47 P.S. §4-464 (“[T]he [trial] court shall hear the application de novo
on questions of fact, administrative discretion and such other matters as are
involved.”).
               Here, the trial court conducted a de novo review of Applicant’s
application for an EDR License. This necessarily included consideration of the fact
that the proposed licensed establishment would be closer than 200 feet to an existing
licensee. Notwithstanding the PLCB’s denial of Applicant’s application on this
ground, the trial court exercised its discretion in a contrary fashion. The trial court
explained its decision by pointing out that there was no evidence that the issuance
of an EDR License to Applicant would be harmful to the community. The trial
court’s opinion does not state that a showing of harm was necessary to warrant denial
of an application based on proximity to another licensee. Rather, the trial court
explained its rationale, which, arguably, it was not even required to do under the
Liquor Code and this Court’s precedent.
                                      Conclusion
               In summary, there was ample support in the record for the trial court’s
determination that Applicant exhausted reasonable means to find a restaurant liquor
license within Chester County’s quota system before it applied for an EDR License.


                                          16
In concluding that the presence of another licensed premises within 200 feet of
Applicant’s premises was not a basis for denying its application, the trial court
exercised the discretion afforded to it under a de novo standard of review.
Accordingly, we affirm the trial court’s order.


                                   _____________________________________
                                   MARY HANNAH LEAVITT, President Judge




                                         17
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Myles Development Company, LLC        :
                                      :
            v.                        :   No. 23 C.D. 2019
                                      :
Pennsylvania Liquor Control Board,    :
                 Appellant            :


                                 ORDER

            AND NOW, this 16th day of January, 2020, the order of the Court of
Common Pleas of Chester County dated December 14, 2018, in the above-captioned
matter is AFFIRMED.
                                _____________________________________
                                MARY HANNAH LEAVITT, President Judge
