In re Transfer of Liquor Club License

458 A.2d 670, 73 Pa. Commw. 522, 1983 Pa. Commw. LEXIS 1546

• Court: Commonwealth Court of Pennsylvania
• Decided: April 21, 1983
• Docket: Appeal, No. 612 C.D. 1982
• Status: Published

Opinion

Opinion by

President Judge Crumlish, Jb.,

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. Commonwealth Ct. 367, 456 A.2d 709 (1983).

Section 404 of tbe Liquor Code¹ provides, in pertinent part :

[I]n the case of any new license or tbe transfer of any license to a new location tbe board may, in its discretion, grant or refuse sucb new license or transfer ... if sucb new license or transfer is applied for a place wbicb is witbin two hundred feet of any other premises wbicb is licensed by tbe board. . . . (Emphasis added.)

This Court, in interpreting this provision, has written :

[B]y enactment of Section 404, tbe Legislature has given the Board tbe discretionary power to refuse or grant applications subject to tbe limitations in tbe Code and it is not tbe function of either tbe court of common pleas or this Court to substitute its discretion for that of tbe Board.

Prezioso Liquor License Case, 36 Pa. Commonwealth Ct. 92, 95, 387 A.2d 1308, 1309 (1978).

Tbe Club argues that, because tbe PLCB has granted other applications witbin 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. Commonwealth Ct. 486, 425 A.2d 853 (1981), in disposing of a similar argument, we wrote:

Tbe applicant’s assertion that tbe Board’s abuse of discretion is clearly manifested by its lack of consideration of tbe fact that tbe 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 he 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.

1 Act of April 12, 1951, P.L. 90, as amended, 47 P.S. §4-404.