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BIERMAN LIQUOR LICENSE CASE. (11/14/58)

November 14, 1958

BIERMAN LIQUOR LICENSE CASE.


Appeal, No. 371, Oct. T., 1958, from order of Court of Quarter Sessions of Carbon County, June T., 1957, No. 25, in re appeal of Raymond A. Bierman et al. Order reversed.

COUNSEL

Robert H. Jordan, Special Assistant Attorney General, with him Horace A. Segelbaum, Assistant Attorney General, and Thomas D. McBride, Attorney General, for appellant.

Albert P. Leonzi, with him Roger N. Nanovic, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, and Watkins, JJ. (ervin, J., absent).

Author: Wright

[ 188 Pa. Super. Page 202]

OPINION BY WRIGHT, J.

On April 18, 1957, Raymond A. Bierman and his wife, Rohama C. Bierman, filed with the Pennsylvania Liquor Control Board an application for a restaurant liquor license at premises in Lower Towamensing Township, Carbon County, upon the theory that the municipality in question is located within a resort area under the relevant provision of the Liquor Code.*fn1 The Board refused the application, whereupon the Biermans appealed to the Court of Quarter Sessions of Carbon County. Said tribunal, by opinion and order dated June 9, 1958, directed that the license be granted. The Board has appealed.

The reasons assigned by the Board for rejecting the application are as follows: "1. As provided by law, Lower Towamensing Township, Carbon County, has a quota of 3 licenses for the retail sale of liquor and malt beverages, and there are at the present time 8 such licenses in effect of the type counted against the

[ 188 Pa. Super. Page 203]

    quota. There are also 3 hotel liquor licenses which, under the law, cannot be counted against the quota. Accordingly, the legal quota for the township is exceeded. 2. The establishment proposed to be licensed under this application is not a resort area, as claimed by the applicants. 3. There is no evidence of any necessity for an additional restaurant liquor license in the township".

The court below, after making fifty-three findings of fact, came to the following conclusions: "1. The Appellants' premises are located within a resort area. 2. There is a reasonable necessity for the issuance of a Restaurant Liquor License to the Appellants ... 3. Under all the conditions and, particularly, in view of the finding that the area is in fact a resort area, the Court concludes that the Pennsylvania Liquor Control Board erred in refusing to issue to Appellants a Restaurant Liquor License".

Discretion to determine whether or not a municipality is located within a resort area is, by the express language of the Liquor Code, vested in the Board. "The court of quarter sessions is not authorized to exercise administrative discretion; this is vested in the Board": Booker Hotel Corp. Liquor License Case, 175 Pa. Superior Ct. 89, 103 A.2d 486."We recognize that administrative discretion must be subject to judicial scrutiny or it will no longer be discretion but tyranny ... However, there must be a clear abuse of administrative discretion before our courts are authorized to set aside the action taken by an administrative board": 425-429 Inc. Liquor License Case, 179 Pa. Superior Ct. 235, 116 A.2d 79. While it is upon the record made at ...


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