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November 11, 1953



Edward J. Harkins, Robert J. Wharton, Harkins & Wharton, Johnstown, for appellant.

Marlin B. Stephens, Johnstown, for School Dist. of City of Johnstown.

Philip N. Shettig, Thomas A. Swope, Ebensburg, Leonard Sobol, Johnstown, for appellees.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright and Woodside, JJ.

Author: Hirt

[ 174 Pa. Super. Page 144]

HIRT, Judge.

The question in this appeal is whether the Liquor Control Board, under § 468(a) of Article IV(C) of the Act of April 12, 1951, P.L. 90, P.S. § 4-468, had the power to refuse the transfer of a restaurant liquor license in the exercise of an administrative discretion under the circumstances of this case.

On October 6, 1952, Sam and Joseph Rizzo applied to the Liquor Control Board for the transfer to them of a restaurant liquor license then held by Frank L. Mikesic. They applied also for a transfer of the license from the premises of Mikesic in the City of Johnstown to a new location at 256 Cooper Avenue in Johnstown. In a prior similar proceeding the lower court had denied an appeal from the refusal of the transfer to the Rizzos by the Board for the reason that the proposed premises to which the transfer of license was sought, was then within a distance of less, although only slightly less, than 300 feet from a public school known as Coopersdale School accommodating about 200 pupils in various elementary grades including a

[ 174 Pa. Super. Page 145]

    kindergarten. Since the place proposed to be licensed was then within 300 feet of the school the Board properly refused to transfer the license in the exercise of its discretion on the authority conferred by § 404 of Article IV(A) of the Liquor Code, 47 P.S. § 4-404. The proposed licensed premises was a single room in a large building and prior to filing the present application for a transfer a partition was moved a few feet thereby reducing the size of the room but increasing the distance of the room from the school to slightly more than 300 feet. Objections to the grant of the transfer were filed by the School District, and many adult residents of the Twenty-first Ward of the City of Johnstown, the area served by the school, filed remonstrances. These included parents of the children attending the school and many property owners in the neighborhood. The Twenty-first Ward, served by the school, is an integrated community known as Coopersdale in which no liquor license has ever been granted.

The Board, after investigation and hearing, found that 'The applicants are reputable people and their establishment complies with the physical requirements prescribed by law'. As to the premises it was found that although 'in close proximity to the Coopersdale Elementary School' nevertheless it is 'a distance of 300 feet 3 inches from that institution'. Notwithstanding these findings the Board in the exercise of an administrative discretion refused a transfer of the license. In so doing the Board found merit in the objections of the School District and of the parents of school children, to the transfer of the license to premises so near the school in a predominantly residential section of Johnstown. The lower court however, after hearing on the appeal from that order, concluded that the Board had no authority to refuse the transfer and directed that a license evidencing a transfer as prayed

[ 174 Pa. Super. Page 146]

    for, be delivered to the applicants by the Board. In construing the applicable provisions of the Liquor Code the court said: 'What is meant [by § 468] is that a license shall be transferred from one person to another or from one location to another or both under certain requirements of the law, which are, in the event of an application for a transfer to a person other than the licensee, that such person be a fit and proper person to have such license and in the case of a transfer from one location to another that the location meet with the requirements of the regulations of the Board and be not less than three hundred feet from certain types of property. When these matters have been determined favorably, as they have been determined by the Board in the present case, nothing is left for the Board to do but to grant the transfer.' ...

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