Opinion
April 21, 1983.
Pennsylvania Liquor Control Board — Transfer of liquor license — Scope of appellate review — Error of law — Abuse of discretion — Findings of fact — Substantial evidence — Liquor Code, Act of April 12, 1951, P.L. 90 — Proximity to other licensed premises.
1. In a liquor license transfer proceeding, review by the Commonwealth Court of Pennsylvania is to determine whether the lower court committed an error of law, abused its discretion or made findings unsupported by substantial evidence. [523-4]
2. Under provisions of the Liquor Code, Act of April 12, 1951, P.L. 90, the Pennsylvania Liquor Control Board is given discretion to deny the transfer of liquor license to premises located within two hundred feet of other licensed premises, and it is not an abuse of discretion to deny such a transfer when nine other licensed premises are within two hundred feet of the premises sought to be licensed as it is within the discretion of the Board to determine just how many licensees will be permitted to operate in such close proximity to each other. [524]
Submitted on briefs March 2, 1983, to President Judge CRUMLISH, JR. and Judges MacPHAIL and BARBIERI, sitting as a panel of three.
Appeal, No. 612 C.D. 1982, from the Order of the Court of Common Pleas of Allegheny County in case of Commonwealth of Pennsylvania v. Suburban Democrat Club, No. 1594 of 1982.
Application with the Pennsylvania Liquor Control Board for transfer of liquor license. Application denied. Applicant appealed to the Court of Common Pleas of Allegheny County. Denial affirmed. PAPADAKOS, A.J. Licensee appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Louis P. Vitti, Markovitz and Vitti, for appellant.
Felix Thau, Assistant Counsel, with him J. Leonard Langan, Chief Counsel, for appellee.
The Suburban Democrat Club (Club) appeals an Allegheny Common Pleas Court order which denied an application for transfer of a liquor license. We affirm.
The Club, a private social organization, applied to transfer a club liquor license to premises located in a commercial area. Within two hundred feet of the Club there are nine other licensed establishments. Although no one contested the application, the Pennsylvania Liquor Control Board (PLCB) denied the transfer solely because of the physical proximity of the other establishments. The common pleas court affirmed, concluding that there had been no abuse of discretion by the PLCB.
Our scope of review is limited to determining whether the common pleas court committed an error of law, abused its discretion or made findings unsupported by substantial evidence. In Re: Revocation of Liquor License No. R-2193, 72 Pa. Commw. 367, 456 A.2d 709 (1983).
Section 404 of the Liquor Code provides, in pertinent part:
Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-404.
[I]n the case of any new license or the transfer of any license to a new location the board may, in its discretion, grant or refuse such new license or transfer . . . if such new license or transfer is applied for a place which is within two hundred feet of any other premises which is licensed by the board. . . . (Emphasis added.)
This Court, in interpreting this provision, has written:
[B]y enactment of Section 404, the Legislature has given the Board the discretionary power to refuse or grant applications subject to the limitations in the Code and it is not the function of either the court of common pleas or this Court to substitute its discretion for that of the Board.
Prezioso Liquor License Case, 36 Pa. Commw. 92, 95, 387 A.2d 1308, 1309 (1978).
The Club argues that, because the PLCB has granted other applications within two hundred feet of each other, it was an abuse of discretion to refuse its application on that basis. In Pennsylvania Liquor Control Board v. Parker, 56 Pa. Commw. 486, 425 A.2d 853 (1981), in disposing of a similar argument, we wrote:
The applicant's assertion that the Board's abuse of discretion is clearly manifested by its lack of consideration of the fact that the same proximity of two hundred feet apparently served as no impediment to the previous grant of licenses to the other three licenses [sic] fails to take into account the Board's discretion as to where to draw the line as to how many, if any, licensees may be permitted within two hundred feet of each other.
Id. at 491, 425 A.2d at 856.
Affirmed.
ORDER
The Allegheny County Common Pleas Court order, No. 1594 SA 1982 dated March 1, 1982, is affirmed.