Appeal from order of Court of Quarter Sessions of Philadelphia County, April T., 1963, No. 1352, in the matter of transfer of club liquor license re Founders Hall Foundation.
James Iannucci, Special Assistant Attorney General, with him Thomas J. Shannon, Assistant Attorney General, and Walter E. Alessandroni, Attorney General, for Pennsylvania Liquor Control Board, appellant.
David R. Young, with him James Francis Lawler, and Ostroff & Lawler, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Ervin, P. J. Hoffman, J., dissents.
[ 205 Pa. Super. Page 278]
This is an appeal by the Liquor Control Board from an order of the court below reversing the board and directing it to grant the transfer of a liquor license. The board refused the transfer because (1) the premises proposed to be licensed were within 300 feet of a church and (2) were within 200 feet of another licensed establishment and (3) the proposed transfer would be
[ 205 Pa. Super. Page 279]
against the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of 500 feet.
The board is given discretion to act in transferring a liquor license whenever any one of the above conditions is found to exist. It is now firmly established that the legislature has given to the board the discretion to act in any one of the above situations and that the court may not substitute its discretion for that of the board: 425-429 Inc. Liquor License Case, 179 Pa. Superior Ct. 235 (allocatur refused 179 Pa. Superior Ct. xxvi), 116 A.2d 79. The writer of this opinion wrote a dissenting opinion in that case which it was believed clearly demonstrated that the legislature had amended the act so as to give to the court administrative discretion on the transfer of a liquor license. The majority of this Court, however, did not agree and the Supreme Court refused to allow an allocatur. To the same effect see Gismondi Liquor License Case, 199 Pa. Superior Ct. 619, 186 A.2d 448; Solomon Liquor License Case, 201 Pa. Superior Ct. 82, 191 A.2d 681. Of course the court below may arrive at a different conclusion from that of the board if it can properly find, under the evidence, that the board's findings are not substantiated. In such case the court below is empowered to make its own findings where the evidence exists upon which to rest them.
In the present case the court below found, inter alia, "5. That the place proposed to be licensed is not within 200 feet of any other premises licensed by the Pennsylvania Liquor Control Board." To arrive at this conclusion the court measured the distance along both legs of a right-angled triangle rather than along the hypotenuse of the triangle. The evidence shows that the distance measured along the hypotenuse of the triangle is 188 feet. This brings into question the reasonableness of regulation No. 101.03 adopted by the
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board in pursuance of the power granted by § 207 of the Liquor Code. Regulation No. 101.03 reads as follows: "The part of the church, hospital, charitable institution, school, public playground or premises currently licensed by the board and/or the adjoining ground used in connection therewith nearest to the place proposed to be licensed shall be determined, and the part of the place proposed to be licensed nearest to said church, hospital, charitable institution, school, public playground, or premises currently licensed by the board, shall also be determined. . . .
"Measurements shall be made or calculated in a straight line between the fixed points or stations so determined, regardless of any intervening land, ...