Opinion
March 15, 1966.
April 14, 1966.
Liquor Law — Licenses — Transfer — Proposed premises within 300 feet of a church or within 200 feet of another licensed establishment — Discretion of board — Judicial review — Findings of fact — Act of April 12, 1951, P.L. 90, as amended.
1. Under § 404 of the Act of April 12, 1951, P.L. 90, as amended, the Liquor Control Board has administrative discretion to grant or refuse the transfer of a liquor license where (a) the premises proposed to be licensed are within 300 feet of a church or other enumerated institutions, or (b) within 200 feet of another licensed establishment, and the court may not substitute its discretion for that of the board.
2. In this case, in which it appeared that the board found that the premises to which the licensee sought to transfer her license were within 300 feet of a church and within 200 feet of eight properties currently licensed for the sale of alcoholic beverages and refused the transfer; that, on appeal by the licensee, the court below found that the subject premises were not within 300 feet of a church, and that at the time of trial three of the eight licensed premises had been eliminated, and entered an order reversing the board and directing it to grant the transfer of the license; it was Held that (a) the physical changes did not vitiate the board's finding that licensed places were located within 200 feet of the applicant's property, (b) the further finding of the court below that the property was not within 300 feet of a church was immaterial, since the board has discretion to act in any one of these situations, and (c) the order of the court below should be reversed and the order of the board reinstated.
Before ERVIN, P.J., WRIGHT, WATKINS, MONTGOMERY, JACOBS, HOFFMAN, and SPAULDING, JJ.
Appeal, No. 84, April T., 1966, from order of Court of Quarter Sessions of the Peace of Allegheny County, No. C 2693 of 1965, in re appeal of Ruth A. Nealon, trading as Nealon Cafe, from refusal of transfer application of liquor license. Order reversed.
Appeal by licensee from decision of Pennsylvania Liquor Control Board refusing application to transfer restaurant liquor license.
Order entered directing transfer of license, opinion by McCARTHY, J. Commonwealth appealed.
Thomas J. Shannon, Assistant Attorney General, with him Charles M. Marshall, Special Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Pennsylvania Liquor Control Board, appellant.
Ruth A. Nealon, appellee, in propria persona.
Argued March 15, 1966.
This is an appeal by the Pennsylvania Liquor Control Board from an order of the County Court of Allegheny County reversing the Board and directing it to grant the transfer of a restaurant liquor license. This matter is controlled by § 404 of the Act of April 12, 1951, P.L. 90, as amended, 47 P.S. 4-404.
The Board found that the premises to which appellee sought to transfer her license were within 300 feet of a church and within 200 feet of eight properties currently licensed for the sale of alcoholic beverages.
At a trial de novo, the court below concluded that the subject premises were not within 300 feet of a church. The court also found at the time of the trial that, as a result of redevelopment in the area of the subject premises, three of the eight licensed places had been eliminated.
The court decided that these factual changes justified the substitution of its own findings under the authority of the Founders Hall Foundation Liquor License Case, 205 Pa. Super. 277, 209 A.2d 15 (1965), in which President Judge ERVIN speaking for this Court said, inter alia, "Of course the court below may arrive at a different conclusion from that of the board if it can properly find, under the evidence, that the board's findings are not substantiated. In such case the court below is empowered to make its own findings where the evidence exists upon which to rest them."
In fact, however, the physical changes did not vitiate the Board's findings that places licensed for the sale of liquor were located within 200 feet of the applicant's property. The evidence clearly discloses that currently there are five such licensed places. In Solomon Liquor License Case, 201 Pa. Super. 82, 191 A.2d 681 (1963), we stated: ". . . if the location proposed to be licensed is within two hundred feet of another licensed establishment, that fact alone is a sufficient basis for the Board's refusal to grant or transfer the license. . . ."
The further finding of the lower court that the property was not within 300 feet of a church is immaterial to this issue, for as stated further by Judge ERVIN in the Foundation case, the Board has the discretion to act in any one of these situations and the court may not substitute its discretion for that of the Board.
The order of the court below is reversed and the order of the Board is reinstated.