Commonwealth v. Chinese Gourmet, Inc.

580 A.2d 917, 135 Pa. Commw. 303, 1990 Pa. Commw. LEXIS 540
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 27, 1990
DocketNos. 2576 & 2577 C.D. 1988
StatusPublished
Cited by1 cases

This text of 580 A.2d 917 (Commonwealth v. Chinese Gourmet, Inc.) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Chinese Gourmet, Inc., 580 A.2d 917, 135 Pa. Commw. 303, 1990 Pa. Commw. LEXIS 540 (Pa. Ct. App. 1990).

Opinion

DOYLE, Judge.

The Pennsylvania Liquor Control Board (Board) appeals an order of the Court of Common Pleas of Allegheny County vacating the Board’s refusal of Chinese Gourmet, Inc.’s application for a person-to-person and place-to-place transfer of a distributor license pursuant to Section 468 of the Liquor Code, 47 P.S. § 4-468.1 The trial court’s order is reversed and the decision of the Board is reinstated.2

The issues presented are two:

(1) Whether or not the trial court exceeded its scope of review, and;
(2) Whether it was a manifest abuse of discretion when the Board denied a license to a corporation because its sole principal, Robert Troné, had been the sole principal of another corporate licensee when violations of the Liquor Code were committed which resulted in the revocation of that other license by the Board.

We find that the trial court did not exceed its scope of review, but that the Board did not abuse its administrative [305]*305discretion when it refused to transfer the license to Chinese Gourmet, Inc.

The order of the common pleas court which is under review,3 dated September 30, 1988, (a) vacated a Board order of April 11, 1988, (b) quashed a Supplemental Appeal of Chinese Gourmet, Inc. and (c) vacated the oral decision of the Board rendered on January 27 and its written opinion of February 25, 1988, with directions to “proceed in accordance with the opinion filed” by the Court.

It is the third part of this order, which directed the Board to “proceed in accordance with the opinion filed,” that is the subject of this review. The trial court opined that the Board had “overreached its authority” by denying the application on grounds not stated in the statute. The Board argues that it properly exercised its discretion and further argues that the court exceeded its scope of review.

The scope of review of a trial court in a license transfer case, as distinguished from a license revocation case, is limited to an inquiry as to whether the Board abused its discretion, unless evidence is presented to the court which is different from that which was before the Board, and the court makes different findings accordingly. Byer Liquor License Case, 73 Pa.Commonwealth Ct. 336, 457 A.2d 1344 (1983). Apparently, there was some confusion following the Supreme Court’s decision in Adair v. Pennsylvania Liquor Control Board, 519 Pa. 103, 546 A.2d 19 (1988), as to the common pleas court’s scope of review in a liquor transfer case. This Court addressed the issue in Beach Lake United Methodist Church v. Pennsylvania Liquor Control Board, 126 Pa.Commonwealth Ct. 71, 558 A.2d 611 (1989), and held that the trial court’s scope of review in a license transfer case under the Liquor Code is unaffected by Adair. (Adair was a license revocation case and Beach Lake resolved the question of whether the broad discretion given to trial courts in revocation cases would [306]*306apply to transfer cases as well.) The scope of review in a transfer case remains as set out in Byer.

In the present case we assume that the court, in effect, reversed the decision of the Board on the basis of an abuse of discretion even though the court expressed the grounds for reversal as the Board “overreach[ing] its authority.”

Upon our review of that decision by the Board, we find that the Board did not abuse its discretion when it refused to transfer the license, but acted within the ambit of authority afforded by the statute. The reason given by the Board for the refusal was as follows:

The Board is not satisfied that Robert Troné, sole principal and manager, is qualified to be an officer, stockholder and manager of a corporation licensed by this Board, particularly by reason of the Board’s issuance of Citation No. 86-2576 against Importing Distributor License ID-2572 while he was the sole principal, which citation resulted in the Board’s order dated June 11,1987 for revocation of said license effective July 17, 1987

On appeal, the trial court found that these grounds for refusal were not authorized by the statute as a matter of law. To the contrary, we find that the Board did no more than its duty under the statute when it refused to transfer the license to Chinese Gourmet, Inc. because Section 468 of the Code forbids the transfer of a license to a corporation or person who “would not have been eligible to receive the license originally.”

Section 437 of the Code, 47 P.S. § 4-437, controls to whom an original license may issue and provides that the Board shall issue a distributor license to any “reputable individuals ... [or] corporation whose members or officers and directors are reputable individuals.” The Board, in its proper discretion, found that Robert Troné, was not reputable for purposes of the issuance of a liquor license, and that therefore Chinese Gourmet, Inc. did not qualify for a transfer of the license. He was not reputable because he was the sole responsible, natural person of Beer and Pop War[307]*307ehouse, Inc., an importing distributor licensee, when those violations were committed.

The common pleas court cited two cases for the proposition that the Board does not have the power to deny a license application on the basis of grounds not stated in the statute; Obradovich Liquor License Case, 386 Pa. 342, 126 A.2d 435 (1956), and Appeal of Makro, 76 Pa.Commonwealth Ct. 385, 464 A.2d 608 (1983). In Obradovich the Supreme Court enunciated the policy that a license may not be refused on grounds not embraced by the statute and that if a person or corporation would qualify under the statute for the grant of an original license, he or it should qualify for a transfer. Obradovich did not diminish the right of the Board to exercise its discretion as to who should be the recipient of a liquor license but rather directed the Board to exercise that discretion. The court stated:

In the initial grant of a license the only matters to be considered are the fitness of the applicant ... and the transferee must be a person who would have been eligible to receive the license originally.

386 Pa. at 344, 126 A.2d at 437. In Obradovich the discretion not granted to the Board was the discretion to listen to general opposition of neighbors over such concerns as the fear of changing the quiet character of the neighborhood.

Makro was a Commonwealth Court case which cited two other cases as standing for the proposition that the Board may not refuse a license on grounds that are not found in the statute: Pittaulis Liquor License Case, 444 Pa. 243, 282 A.2d 388 (1971) (where the property was under a lease restriction that disallowed the sale of liquor), and Pennsylvania Liquor Control Board v.

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Related

Chinese Gourmet, Inc. v. Pennsylvania Liquor Control Board
620 A.2d 1096 (Supreme Court of Pennsylvania, 1993)

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Bluebook (online)
580 A.2d 917, 135 Pa. Commw. 303, 1990 Pa. Commw. LEXIS 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-chinese-gourmet-inc-pacommwct-1990.