Commentary

Johnstown lawmaker scores big win in fight with Pa. liquor board. But the fight continues | Mark O’Keefe

January 26, 2021 6:30 am

A state liquor store front in Harrisburg (Capital-Star photo by Elizabeth Hardison).

Having won his two-year right-to-know battle with the Pennsylvania Liquor Control Board, a Johnstown legislator hopes to find out why the agency fought so hard to keep basic information from him and taxpayers across the commonwealth.

State Rep. Frank Burns, a Democrat, who represents parts of Cambria and Somerset counties, filed a right-to-know request to find out how many deactivated restaurant liquor licenses are available for auction in each of Pennsylvania’s 67 counties.

After being denied the request by the LCB, Burns appealed to the state Office of Open Records which ruled in his favor. The LCB then appealed that ruling to Commonwealth Court, which also ruled in his favor.

Finally, the LCB appealed the ruling to the state Supreme Court which recently issued a one-sentence order, denying the appeal and upholding the Commonwealth Court ruling.

“In a victory for the people, the LCB has learned that it works for us, not the other way around,” said Burns. “This is a win for all Pennsylvanians and small businesses statewide. Given the LCB’s fight-to-the-death attempt to hide these records, I’m curious to see what they will show.”

The real losers, noted Burns, were taxpayers who paid for the futile legal battle.

“We won all the legal battles,” added Burns. “The LCB never won anything. It’s just a shame the LCB had to drag this out as long as they did.”

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While taxpayers paid the legal bills for the LCB, Burns had to foot his legal expenses out of his wallet, which he estimated at “thousands of dollars.”

Burns went all out, hiring Terry Mutchler, the first director of the state’s Office of Open Records. She praised Burns for not giving in on the protracted legal battle.

“Most everyday folks don’t have the time, effort, or resources to see a case all the way through to the Pennsylvania Supreme Court,” Mutchler said. “After the Office of Open Records ordered release (of the information) – and did a terrific analysis – and the Commonwealth Court said the same thing, I do think certainly taking it up (to the Supreme Court) was their right… but I think this was more a delay than deliberative.

“For the first time in history, citizens are going to get to see numbers of these licenses, thanks to Representative Burns’ perseverance,” she added. “This will turn out to be one of the most significant cases in Pennsylvania history, For transparency, it’s a very, very big win.”

Liquor control board spokesman Shawn Kelly defended the agencies’ decision to keep the records confidential.

“We believe the information sought by Representative Burns is proprietary and trade secret, and that releasing it will have significant impact on the market.”

In a statement released after the state Supreme Court refused to hear the appeal, the LCB said, “While we were hoping for another opportunity to present our arguments, the Pennsylvania Liquor Control Board respects the Supreme Court’s decision not to hear the case.

“As such, we will be providing responsive records to Rep. Burns within 30 days from the date of the Supreme Court’s order denying allowance of appeal.”

Burns said if the LCB truly wanted to help license holders, it should let them sell their licenses to anyone across the state. Currently, the licenses can only be sold within the same county.

He said that makes no sense as licenses go for more money in affluent places like Cumberland County than in economically depressed areas such as Cambria County.

“There should be a free market for the licenses,” said Burns. “The government should stay out of the selling of licenses and leave it up to free enterprise.”

He added that the LCB also shouldn’t be allowed to auction off-licenses.

“It’s not fair that the LCB can revoke these licenses and then just auction them off,” said Burns. “The problem is the LCB is responsible for regulating licenses, and then it’s also in the business of selling licenses. To me, that’s a conflict that shouldn’t be allowed to happen.”

Burns said he believes the three members of the LCB wield too much power and have become arrogant and unresponsive to the public’s wishes.

“The LCB has their own little kingdom with a moat around them for protection,” said Burns. “They’re not accountable to anyone, and that has to change. If they can treat a legislator like this you can only wonder how they treat other people out there.”

Opinion contributor Mark O’Keefe, of Mechanicsburg, Pa., is the former editorial page editor of the Uniontown Herald-Standard. His work appears biweekly on the Capital-Star’s Commentary Page.

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