Appeal, No. 230, Oct. T., 1961, from order of Court of Quarter Sessions of Montgomery County, Nov. T., 1959, No. 84, in the matter of issuance of restaurant liquor license to Charles E. Tate, trading as North Hills Tavern. Order reversed.
William N. J. McGinniss, Special Assistant Attorney General, with him George G. Lindsay and Horace A. Segelbaum, Assistant Attorneys General, and Anne X. Alpern, Attorney General, for Pennsylvania Liquor Control Board, appellant.
Horace A. Davenport, with him Mabel Ditter Sellers, for appellee.
Matthew W. Bullock, Jr., Assistant City Solicitor, with him James L. Stern, Deputy City Solicitor, Levy Anderson, First Deputy City Solicitor, and David Berger, City Solicitor, for City of Philadelphia, amicus curiae.
Before Ervin, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., and Wright, J., absent).
[ 196 Pa. Super. Page 195]
The constitutionality of the amendment to § 404 of the Liquor Code of April 12, 1951, P.L. 90, made by the Act of August 25, 1959, P.L. 746, 47 P.S. § 4-404, is before us for determination in this case. The Court of Quarter Sessions of Montgomery County held that the amendment constituted a delegation of legislative powers in violation of Article 2, § 1 of the Pennsylvania Constitution.
The amendment added the following to § 404, supra: "And provided further, That the board shall refuse any application for a new license or the transfer of any license to a new location if, in the board's opinion, such new license or 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:"
[ 196 Pa. Super. Page 196]
Charles E. Tate, trading as North Hills Tavern, filed an application with the Pennsylvania Liquor Control Board for the transfer of a Malt Beverage License to an establishment in Upper Dublin Township in Montgomery County, and later filed an application for a new Restaurant Liquor License for the same premises upon the surrender of the Malt Beverage License. After hearing protests, the board granted the transfer of the Malt Beverage License (which is governed by a different act than the liquor license), but refused the Restaurant Liquor License, finding the following fact: "5.The granting of a retail liquor license at this location is vigorously opposed by the Police Department and the Board of Commissioners of Upper Dublin Township, the Antioch Baptist Church, and by many residents in the immediate vicinity, on the grounds that the issuance of such a license would attract an undesirable element to the neighborhood, would increase law enforcement and parking problems, would be against the interests of the residents, would interfere with the peaceful enjoyment of their homes, and would constitute a source of annoyance to them.
"The Board is of the opinion that under all of the evidence, the issuance of a restaurant liquor license for this establishment would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of 500 feet of the premises, and that, as provided by law, the application must be refused."
The applicant appealed to the court below which granted the license on the ground that its refusal was warranted only by the Act of August 25, 1959, P.L. 746, supra, which the court felt was an unconstitutional delegation of legislative power to the Pennsylvania Liquor Control Board. The board appealed to this Court, and the City of Philadelphia, which is interested in ...