Appeal, No. 129, April T., 1963, from order of County Court of Allegheny County, No. C-2137 of 1962, in re appeal from refusal of application for transfer of restaurant liquor license to Joseph Solomon, trading as Villa Roma. Order reversed.
Lewis J. Nescott, Special Assistant Attorney General, with him George G. Lindsay, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Pennsylvania Liquor Control Board, appellant.
Charles N. Caputo, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
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The Pennsylvania Liquor Control Board refused to approve the transfer of a restaurant liquor license presently held by Redwood Enterprises, Inc., 2901 Banksville Road, Pittsburgh, Pennsylvania, to Joseph Solomon for premises at 136 Sixth Street, Pittsburgh, Pennsylvania. The action of the Board was reversed by the County Court of Allegheny County, and the Board has appealed to this court. The appeal must be sustained on the authority of our recent decisions in Gismondi Liquor License Case, 199 Pa. Superior Ct. 619, 186 A.2d 448, and Koppenhaver Liquor License Case, 200 Pa. Superior Ct. 214, 188 A.2d 847.
The reason assigned by the Board in refusing to approve the transfer was its finding of fact that the establishment proposed to be licensed is within two hundred
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feet of six other licensed establishments. The court below did not question this finding, but took the position "that the exercise of discretion by the Board must be based on facts other than the mere fact of distance". However, the amendment of August 25, 1959, P.L. 746, added to Section 404 of the Liquor Code, 47 P.S. 4-404, a provision expressly giving the Board discretion to grant or refuse a new license or transfer "applied for a place which is within two hundred feet of any other premises which is licensed by the Board". As we pointed out in the Gismondi and Koppenhaver cases, if the location proposed to be licensed is within two hundred feet of another licensed establishment, that fact alone is a sufficient basis for the Board's refusal to grant or transfer the license. The court below has no right to substitute its discretion for that of the Board.
We are not in accord with the primary contention in the extensive brief of counsel for the applicant that the amendatory statute is unconstitutional because it does not set forth "any standards to be used by the Board in administering said discretion". We rejected a similar contention in Clinton Management Liquor License Case, 188 Pa. Superior Ct. 8, 145 A.2d 873, which involved the refusal of the Board to approve the transfer of a hotel liquor license on the ground that the location in question was within three hundred feet of several restrictive institutions. The following excerpt from our opinion in the Clinton Management case is here pertinent: "Appellant's final argument is that 'the grant of discretion by the legislature to the Board, without standards, is invalid' because it constitutes an unlawful delegation of legislative authority in violation of Article 2, Section 1 of the Constitution of the Commonwealth... Section 404 of the Liquor Code establishes a definite standard for the Board to follow, namely, the existence of a restrictive
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institution within a distance of 300 feet. We are clearly of the opinion that the section is ...