Opinion
Argued May 5, 1978
July 20, 1978.
Pennsylvania Liquor Control Board — Denial of application for restaurant liquor license — Liquor Code, Act 1951, April 12, P.L. 90 — Scope of review by lower court — Erroneous findings as to some grounds for denial — Transfer of license — License to sell beer and malt beverages.
1. A court of common pleas in reviewing action of the Pennsylvania Liquor Control Board in denying an application for a restaurant liquor license under the Liquor Code, Act 1951, April 12, P.L. 90, cannot substitute its judgment for that of the Board upon determining that some findings of the Board furnishing a basis for the denial action were erroneous, so long as grounds remain that would have supported the decision of the Board. [606-7]
2. Under the Liquor Code, Act 1951, April 12, P.L. 90, an application for a restaurant liquor license by the holder of a license to sell beer and malt beverages is an application for a new license not an application for a license transfer. [607]
Argued May 5, 1978, before Judges CRUMLISH, JR., WILKINSON, JR. and BLATT, sitting as a panel of three.
Appeals, Nos. 518 and 550 C.D. 1977, from the Order of the Court of Common Pleas of Allegheny County in case of In the Matter of: Appeal and Petition of Elmer J. Hill, Jr., t/a Grace's No. S.A. 294 of 1976.
Application to the Pennsylvania Liquor Control Board of restaurant liquor license. Application denied. Applicant appealed to the Court of Common Pleas of Allegheny County. Appeal sustained. Ross, J. Board and protestant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed. Adjudication of Pennsylvania Liquor Control Board reinstated. Application for reargument filed and denied.
James P. Deeley, with him J. Leonard Langan, Assistant Attorney General, Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellant, Pennsylvania Liquor Control Board.
Donald C. Bush, with him Dale P. Frayer, and Anderson, Moreland Bush, for appellant, Mt. Lebanon School District.
Jerome Hahn, with him George I. Bloom, for appellee.
The Pennsylvania Liquor Control Board (Board) appeals the decision granting Elmer J. Hill, Jr., t/a Grace's (Hill) a restaurant liquor license. This application for a license had been rejected by the Board because the premises were within 300 feet of a school and for two other unrelated causes. Upon appeal by Hill to the Court of Common Pleas, the Board relied solely on the proximity of the restaurant to the school and did not pursue the other grounds. The court below held that "because the board did not ground its refusal on this one fact alone," and "since the Court now has before it only one of the three bases of the board adjudication, the question before the Court cannot be the abuse of discretion of the board in denying the application solely on the ground of prohibited proximity. The board did not so rule and the Court therefore has not before it the question of the abuse by the board of its discretion. The Court rather has before it de novo . . . whether on the basis alone of forbidden proximity this new license ought to be denied." The court found that the restaurant was indeed within 300 feet of a school but, substituting its judgment for that of the Board, it nevertheless granted the liquor license. The Board then appealed the holding to this Court.
Section 404 of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-404, provides in part:
§ 4-404. Issuance of hotel, restaurant and club liquor licenses
[T]he board shall, in the case of a hotel or restaurant, grant and issue to the applicant a liquor license, and in the case of a club may, in its discretion, issue or refuse a license: Provided, however, That in 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 place proposed to be licensed is within three hundred feet of any church, hospital, charitable institution, school, or public playground. . . .
We reverse the order of the court below because it was based on an erroneous interpretation of the function of a court in reviewing the findings of the Board. It is well settled that even where a court discovers that several of the findings of the Board were erroneous, it may not substitute its judgment for that of the Board so long as grounds remain that would have supported the Board's decision. This was the precise holding in the case of Jack's Delicatessen, Inc. Liquor License Case, 202 Pa. Super. 481, 485, 198 A.2d 604, 606 (1964), where the Court wrote:
We have expressly ruled that, where premises proposed to be licensed are located 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, and the court of quarter sessions has no right on appeal to substitute its discretion for that of the Board: Koppenhaver Liquor License Case, 200 Pa. Super. 214, 188 A.2d 847; Solomon Liquor License Case, 201 Pa. Super. 82, 191 A.2d 681; Teti Liquor License Case, supra, 201 Pa. Super. 87, 191 A.2d 683. In the case at bar, the Board's refusal to transfer the license was based on two grounds, either one of which was sufficient. The court below was without authority to exercise its independent discretion on the hypothesis that one of the grounds was erroneous. (Emphasis added.)
See also Bilinsky v. Liquor Control Board, 7 Pa. Commw. 312, 298 A.2d 698 (1972).
We find no merit in Hill's argument that the restaurant liquor license requested herein was not an application for a new license but a request for the transfer of an existing one. Hill's prior license was for the sale of beer or malt beverages only and Section 401 et seq. of the Liquor Code, Act of April 12, 1951, P.L. 90, as amended, 47 P. S. § 4-401 et seq., clearly distinguishes between liquor and beer licenses.
Accordingly, we
ORDER
AND NOW, this 20th day of July, 1978, the order of the Court of Common Pleas of Allegheny County is reversed and the adjudication of the Pennsylvania Liquor Control Board denying Elmer J. Hill, Jr., t/a Grace's, a new restaurant liquor license is reinstated.