Appeal, No. 169, April T., 1955, from order of County Court of Allegheny County, 1955, No. C-343, in re appeal of Louis Obradovich from decision of Pennsylvania Liquor Control Board. Order affirmed.
Roslyn M. Litman, with her S. David Litman, and Litman & Litman, for appellant.
Horace A. Segelbaum, Deputy Attorney General, with him Herbert B. Cohen, Attorney General, and Harold R. Bair, Special Deputy Attorney General, for Liquor Control Board, appellee.
Charles E. Hawkins, with him Abe R. Cohen and Crone & Cohen, for protestants, appellees.
Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside, and Ervin, JJ.
[ 180 Pa. Super. Page 385]
Louis Obradovich filed with the Pennsylvania Liquor Control Board an application for the transfer to him, at No. 401 Hastings Street in the City of Pittsburgh, of the restaurant-liquor license issued to August J. and Mabel E. Anderson for premises at No. 136 South 21st Street in said City. The application was protested by persons residing in the vicinity of the premises to which the license was to be transferred. The Board refused the application, whereupon Obradovich appealed to the County Court of Allegheny County. After hearing de novo, the trial judge dismissed the appeal and sustained the order of the Board refusing the transfer. Exceptions were overruled by the court en banc, and this appeal followed.
The lower court found that appellant was a reputable person, and that his establishment met the legal physical requirements. It further found that, while the premises in question is zoned commercial, the neighborhood is in fact "almost completely residential"; that, with the exception of a drugstore, the business places already located in the area close by eight o'clock p.m.; and that the proposed establishment would seriously threaten the present quiet character of the neighborhood. The record discloses that the building in which it is planned to house the proposed license is located on the southeast corner of Hastings and Reynolds Streets, fronting on Hastings Street which is entirely residential; that the existing business establishments all front on Reynolds Street commencing at the southwest corner of Hastings and Reynolds Streets and extending one block in a westerly direction away from the proposed licensed premises. In the words of Judge
[ 180 Pa. Super. Page 386]
KAUFMAN, "Not only is the business area, taken collectively, a small island in a residential expanse, but the proposed licensed premises is practically an island by itself". The lower court also emphasized the fact that the premises in question must be continuously passed by children attending school and visiting Mellon Park.
We deem it unnecessary to discuss appellant's contention that the Board does not have administrative discretion in transfer cases. This contention has already been decided adversely to appellant's position in Rizzo Liquor License Case, 174 Pa. Superior Ct. 143, 100 A.2d 135. Appellant further contends that, since the premises in question have been zoned commercial, there was an abuse of discretion in refusing to approve the transfer on the ground that the area is residential in character. It is a sufficient answer to this contention to note that "A municipality may not in the guise of a zoning ordinance regulate the business of dispensing liquor": Hilovsky Liquor License Case, 379 Pa. 118, 108 A.2d 705. Appellant relies upon Burrell Liquor License Case, 172 Pa. Superior Ct. 346, 94 A.2d 110, but that decision is not controlling in the present factual situation. We agree with the court below that the Board did not abuse its discretion in refusing to approve the transfer here under consideration.
The order of the lower court is affirmed.
In my opinion, the order in this case should be reversed on the ground that the Board abused its discretion in refusing the transfer.
The sole reason advanced for refusing the transfer was that the establishment proposed to be licensed is situated in a "residential" area. That is just contrary
[ 180 Pa. Super. Page 387]
to fact. The municipal authorities by legislative enactment, a zoning ordinance, designated this area as commercial. Of course as stated in the majority opinion, a municipality may not in the guise of a zoning ordinance regulate the business of dispensing liquor, but the converse should also be true: the Liquor Control Board - or a court acting under the liquor laws - cannot rezone a municipality and then use that attempted rezoning as the basis for refusing or granting the issuance of a license or a transfer thereof.
I would reverse the order of the court below and remit the record to the Liquor Control Board with direction to approve the ...