Opinion
Argued May 6, 1976
June 23, 1976.
Liquor — Denial of club liquor license application — Liquor Code, Act 1951, April 12, P.L. 90 — Discretion of Pennsylvania Liquor Control Board — Distance from other licensed premises — Distance from church — Absence of protests.
1. The Pennsylvania Liquor Control Board is given discretion under the Liquor Code, Act 1951, April 12, P.L. 90, to deny an application for a club liquor license for premises closer than two hundred feet to other licensed premises and closer than three hundred feet to a church, whether or not protests have been filed, and it is not the function of the reviewing court to substitute its discretion for that of the Board. [272-3]
Judge KRAMER did not participate in this decision.
Argued May 6, 1976, before Judges CRUMLISH, JR., WILKINSON, JR., and BLATT, sitting as a panel of three.
Appeal, No. 1314 C.D. 1975, from the Order of the Court of Common Pleas of Somerset County in case of In Re: Appeal of Home Aid Association of John C. Tressler Post No. 3504 of the Veterans of Foreign Wars from Refusal of Pennsylvania Liquor Control Board to Grant Club Liquor License, No. 30 Special 1975.
Application to the Pennsylvania Liquor Control Board for club liquor license. Application refused. Applicant appealed to the Court of Common Pleas of Somerset County. Reversed and license ordered granted. SHAULIS, J. Board appealed to the Commonwealth Court of Pennsylvania. Held: Reversed.
David Shotel, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellant.
Thomas G. Saylor, Jr., with him Livengood, Braucher Keim, for appellee.
Appellee applied to appellant for the grant of a club liquor license. A hearing was held before a hearing examiner appointed by appellant. It appears to be clear from the record, it was found by the hearing examiner and by appellant, and it is not contested by appellee before this Court, that the premises of the proposed license is within 200 feet of other establishments licensed for the sale of liquor and within 300 feet of a United Methodist Church. If either of these two facts was not present, there may or may not be other reasons in this record and properly before us to support the decision of appellant denying the application, but it is not necessary to reach these issues.
The examiner recommended to appellant that the license be granted. Appellant saw fit to reject this recommendation and for, inter alia, the above two reasons, rejected the application. An appeal was taken to the court of common pleas which reversed the appellant and directed a license be granted. The court below stated that there was no significance in the fact that the premises of the proposed license was within 200 feet of other licensed premises and within 300 feet of a United Methodist Church. This was reversible error.
A clear discussion of the law on this matter has been so ably and so recently set forth by Judge CRUMLISH in Bilinsky v. Liquor Control Board, 7 Pa. Commw. 312, 298 A.2d 698 (1972), and by Judge KRAMER in Pennsylvania Liquor Control Board v. Two Guy's Delicatessen, Inc., 13 Pa. Commw. 602, 319 A.2d 695 (1974), that there is no need to repeat it here. Section 404 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-404, clearly gives discretion to appellant to grant or deny a license under these circumstances.
The lower court observed that there were no protestants. While this no doubt would be considered by the appellant, it is firmly established that the absence of protests is not controlling. 425-429, Inc. Liquor License Case, 179 Pa. Super. 235, 116 A.2d 79 (1955); Haase Liquor License Case, 175 Pa. Super. 618, 106 A.2d 865 (1954).
The decision of the court below, sustaining the appeal, is reversed and the order of appellant, refusing the application for a club liquor license, is reinstated.
Judge KRAMER did not participate in the decision in this case.