Appeals, Nos. 234 and 235, Oct. T., 1962, from order of Court of Quarter Sessions of Philadelphia County, Dec. T., 1961, No. 1287, in the matter of application of Solomon and Marilyn Cohen and Oscer and Sara Tuckerman for transfer of retail dispenser license No. 671. Order affirmed.
Abraham J. Levinson, for appellants.
Russell C. Wismer, Special Assistant Attorney General, with him George G. Lindsay, Assistant Attorney General, and David Stahl, Attorney General, for Pennsylvania Liquor Control Board, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
These appeals involve the refusal of the Pennsylvania Liquor Control Board to approve the transfer of a retail malt beverage license to premises at 6500 Torresdale Avenue in the City of Philadelphia. The action of the Board was sustained by the court below, and the applicants for the transfer have appealed.
The sole question presented is whether the Board acted properly in refusing to transfer the license because of a deed restriction prohibiting the sale of alcoholic beverages upon the premises for which the license is sought. This is not a new question. We have consistently held in our prior cases that the Board may refuse to issue or transfer a license where
[ 199 Pa. Super. Page 10]
there is a covenant in the deed for the premises sought to be licensed which prohibits the use thereof for the sale of intoxicating liquors. In Cheris's Liquor License Case, 127 Pa. Superior Ct. 355, 193 A. 162, the following pertinent statement appears:
"The provision in the Pennsylvania Liquor Control Act ... directing that on compliance by the applicant with certain conditions, the board 'shall grant and issue a liquor license', does not have the effect of nullifying and invalidating such a restrictive covenant in the deed, or rendering it illegal. The declared purpose of the Act is to regulate and restrain the sale, traffic in and use of alcohol and alcoholic, malt and brewed liquors, not to promote and encourage their sale and use; and the statute declares ... that it shall be interpreted as an exercise of the police power of the Commonwealth for the protection of the public welfare, health, peace and morals of the people of the Commonwealth. Certainly, the Act exhibits no purpose or intent to strike down and render void covenants in deeds restricting or prohibiting the sale of intoxicating liquors, which our courts have upheld as reasonable and legal. Neither in the title nor in the body of the Act is such an effect expressly given to its provisions, nor can it reasonably be implied.
"The statute is dealing in general terms with applicants, who, ordinarily, are not restricted or prohibited by covenants in their deeds from selling intoxicating liquors on their premises, and the mandatory word 'shall' relied on by appellant is necessarily limited to an applicant whose deed does not prohibit the sale of the liquors which he proposes to dispense under his license".
The reasoning of the opinion in the Cheris case was emphatically restated by President Judge KELLER in McGettigan's Liquor License Case, 131 Pa. Superior Ct. 280, ...