Klementovich v. Liquor Control Board

16 Pa. D. & C.3d 603, 1980 Pa. Dist. & Cnty. Dec. LEXIS 298
CourtPennsylvania Court of Common Pleas, Lycoming County
DecidedApril 8, 1980
Docketno. 78-3651
StatusPublished

This text of 16 Pa. D. & C.3d 603 (Klementovich v. Liquor Control Board) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lycoming County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Klementovich v. Liquor Control Board, 16 Pa. D. & C.3d 603, 1980 Pa. Dist. & Cnty. Dec. LEXIS 298 (Pa. Super. Ct. 1980).

Opinion

BROWN, J.,

Specially Presiding,

FINDINGS OF FACT

(1) On August 7, 1978 the Pennsylvania Liquor Control Board approved the transfer of a restaurant liquor license from Bruno Mack and Carmen Mack to Mary Ann Churba and Raymond C. Walters, Jr. which action also included transferring the situs of the license from 761 West Fourth Street, Williamsport, Pa., to 2868 Reach Road, Williamsport, Pa.

(2) The Reach Road location is owned by Ronald R. Churba and Mary Ann Churba, his wife, and Raymond C. Walters, Jr. and Patricia Ann Walters, his wife, and is being leased to the licensees. The licensed premises is a building formerly used for residential purposes. The establishment will seat between 60 and 65 patrons and has on premises parking to accommodate 46 vehicles.

(3) The Reach Road location is in an area that is zoned for light manufacturing.

(4) The neighborhood within 500 feet of the Reach Road location is approximately 70 percent residential and 30 percent industrial.

(5) Reach Road is a narrow two lane road without sidewalks or curbs. It is heavily traveled by ve[605]*605hicular traffic (including trucks) incidental to the industrial concerns in the area as well as to the United States Post Office for Williamsport which is located in the area. The road is also used by school age children both as pedestrians and as bicycle riders.

(6) The Lycoming County SPCA owns real estate both within 500 feet and 300 feet of the licensed premises. However, that part of its property which is used for its charitable purposes is beyond 300 feet of the licensed premises.

(7) The residential units within 500 feet of the licensed premises consist of twelve households containing a number of school age children and several elderly persons in poor health. Ten of these households have expressed strong opposition to the transfer of the liquor license. The school age children use Reach Road in waiting for school buses and also when playing in their neighborhood and would be able to observe the licensed premises during these activities.

DISCUSSION AND CONCLUSIONS OF LAW

While the present proceedings constitute a de novo review of the board’s approval of the liquor license transfer, the scope of that review is somewhat circumscribed: Liquor Code of April 12, 1951, P.L. 90, 47 P.S. §4-464. As recently reiterated in Application of Barone, 43 Pa. Commonwealth Ct. 446, 449, 403 A. 2d 148, 149 (1979):

“Review by the court of common pleas is not unlimited; it may not substitute its discretion for that of the Board’s and may reverse only if the Board has clearly abused its discretion. Particularly, it may not substitute its own findings for those of the Board where there is no significant difference in [606]*606the evidence presented to the court and the agency.”

Appellants’ primary objection to the board’s approval of the transfer relates to alleged detriment to the welfare, health, peace and morals of the neighborhood within a radius of 500 feet of the premises. The arguments in support of such detriment include the following:

(1) Exposure of neighborhood children to the licensed premises.

(2) Increased traffic problems in general and increased traffic hazards in particular resulting from drivers’ consuming intoxicants at the, licensed premises.

(3) The poor health of several of the residents within 500 feet of the premises.

(4) The concentration of residences within 500 feet of the premises.

A voluminous record has been made in support of the above arguments. However, for the most part the same evidence was presented to the board in less detail. Consequently, the courtis not permitted to substitute its own findings for those of the board. This leaves the court with the task of determining whether the board clearly abused its discretion in approving the transfer.

The well-being of neighborhood children and traffic congestion are certainly matters which must be evaluated in reviewing the board’s decision. While it is arguable that a licensed premises will work some detriment as to these factors, it is also arguable that there will be no significant detriment as a result of the operation of the premises. The same observation can be made as to the health of affected residences. In this context, the court cannot find that the board’s exercise of judgment in [607]*607approving the transfer was manifestly unreasonable. Thus, a finding that there has been a clear abuse of discretion is not appropriate.

With regard to potential hazards with the drinking driver, appellants did present expert testimony to the effect that the licensed premises being in close proximity to various industrial concerns would attract employes of such concerns as they were leaving work, and that such people were peculiarly susceptible to intoxication and driving under the influence. While this is an interesting theory, it is in reality a mere opinion which the court does not accept as a fact. To the contrary, the court’s judicial experience with driving under the influence offenders would suggest that this category of imbiber is not frequently before the court.

Another area of additional evidence presented by appellants was expert testimony as to the diminution of residential property values attributable to the operation of the licensed premises. Again, this is opinion evidence which the court has rejected. In so doing, it should be noted that residential property values in the area have no doubt been decimated over the years as a result of the impact of the location of a limited access highway (U.S. Route 220) almost immediately adjacent to most of the affected residences as well as the gradual commercialization of the area in recent years. Such occurrences have no doubt lowered the value of neighborhood properties as residences, and it is doubtful that the licensed premises will occasion any further significant erosion of residential property values.

During the course of these proceedings, appellants have attempted to introduce evidence of how the licensed premises were operated subsequent to the transfer of the license. After a consideration of the applicable statutory law defining the nature [608]*608and scope of judicial review as it pertains to the present appeal, this evidence was held to be inadmissible.

The purpose of the offered evidence was to establish that the actual operation of the licensed premises was detrimental to the neighborhood. In reviewing section 404, the following provision stands out: “[T]he board shall refuse . . . the transfer of any license to a new location if, in the board’s opinion, such . . . transfer would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of five hundred feet of the place proposed to be licensed . . . .” (Emphasis supplied.)

As a matter of statutory construction, the use of the phrase “would be detrimental” clearly contemplates a prospective judgment as to the effect of the licensed transfer on the neighborhood, rather than a retrospective or hindsight judgment based upon actual occurrences at the licensed site. It could be argued that the offered evidence, if it established actual detriment to the neighborhood, would be the better te st with re gar d to the welfare of the neighborhood.

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Related

In re Barone
403 A.2d 148 (Commonwealth Court of Pennsylvania, 1979)

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Bluebook (online)
16 Pa. D. & C.3d 603, 1980 Pa. Dist. & Cnty. Dec. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/klementovich-v-liquor-control-board-pactcompllycomi-1980.