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APPEAL RIZZO. (RIZZO LIQUOR LICENSE CASE.) (12/29/53)

December 29, 1953

APPEAL OF RIZZO. (RIZZO LIQUOR LICENSE CASE.)


COUNSEL

Anthony Cavalcante, Uniontown, for appellant.

Meyer Umansky, Sp. Deputy Atty. Gen., Horace A. Segelbaum, Deputy Atty. Gen., for appellee.

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

Author: Reno

[ 174 Pa. Super. Page 458]

RENO, Judge.

On April 1, 1949 Frank Rizzo applied to the Pennsylvania Liquor Control Board for a hotel liquor license and amusement permit for premises located in Springhill Township, Fayette County. After a hearing the Board filed an opinion and order refusing the

[ 174 Pa. Super. Page 459]

    license, and the applicant thereupon appealed to the court below. After a hearing de novo an order was filed dismissing the appeal, affirming the findings, and sustaining the action of the Board. Exceptions thereto were overruled and dismissed by the court en banc and the order dismissing the appeal and sustaining the action of the Board was affirmed. This appeal by the applicant followed.

George Rizzo, brother of appellant, and other members of his family, operated a licensed restaurant known as 'The Wagon Wheel' in the village of Lake Lynn, Springhill Township, Fayette County, and employed Frank Rizzo, appellant, as a bartender until the establishment was sold late in 1945 or early in 1946. Approximately three years thereafter, George and Elizabeth Rizzo purchased an old homestead in the said village of Lake Lynn, which had formerly been operated as a boarding house. After some remodeling, an application for a hotel liquor license and amusement permit for the premises was filed by George and Elizabeth Rizzo. The order of the Liquor Control Board refusing this application was sustained by the Court of Quarter Sessions of Fayette County. Shortly thereafter George and Elizabeth Rizzo sold the equipment and fixtures of the remodeled boarding house to Frank Rizzo. The premises for which the license is applied was purchased by appellant from his father and mother. After making minor repairs the application in question was filed with the Pennsylvania Liquor Control Board.

The opinion filed by the Board refusing the license is in part as follows: 'On August 3, 1949, a hearing upon said application was held after notice to the applicant as required by law. At the said hearing which was attended by the applicant and his counsel the evidence adduced established the following facts: 1. It

[ 174 Pa. Super. Page 460]

    appears that the applicant has attempted to create a semblance of a hotel for the sole purpose of obtaining a retail liquor license in excess of the quota prescribed by law for the township wherein the establishment is located. 2. A protest previously filed against the issuance of a retail liquor license to George and Elizabeth Rizzo, who previously filed an application for hotel liquor license in the same premises, has been revived against the application by counsel for the protestants. The testimony also reveals that the applicant is not a person who bears general good reputation as a law abiding citizen and, therefore, would not be a proper person in the light of said testimony to hold a liquor license afforded under the laws of this Commonwealth. Under the above related facts, the Board is of the opinion that this application for hotel liquor license and amusement permit should be refused.'

The Liquor Code of April 12, 1951, P.L. 90, § 464, 47 P.S. § 4-464, provides for an appeal to this Court from an order or decree sustaining the action of the Board in refusing to issue a license. On such appeal the examination by the appellate court of the record goes beyond the question of the regularity of the proceedings and includes a review of the proofs to determine whether the Board abused its discretion in refusing the license. Burrell I. B. P. O. E. of W. 737 v. ...


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