Appeal from order of Court of Quarter Sessions of the Peace of Philadelphia County, Aug. T., 1964, No. 1423, in re application of Charles K. Manns and Bernice B. Manns for transfer of restaurant liquor license.
Russell C. Wismer, with him Martin R. Freedman, for appellants.
Melvin B. Goldstein, for Pennsylvania Liquor Control Board, appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Watkins, J. Wright, J., would affirm on the opinion of the court below.
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This appeal involves the order of the Court of Quarter Sessions of the Peace of Philadelphia County, that sustained the appeal of the neighborhood protestants, the appellees, and reversed the order of the Liquor Control Board that permitted the transfer of the restaurant liquor license of Charles K. Manns and Bernice B. Manns, the appellants.
The facts are simple: The appellants have held a restaurant liquor license since 1956 for premises located at 2739 West Oxford Street, Philadelphia, Pennsylvania. The licensed premises and the licensees enjoy a good reputation. In 1963 the School District of Philadelphia condemned the area containing the licensed premises and they were ordered to vacate on or before January 1, 1965. The licensees purchased premises at 2500 North 33rd Street, Philadelphia, Pa., and this location is not within 300' of any church, school, charitable institution or public playground and not within 200' of any other licensed establishment. There are only three licensed establishments in the area. The new location is approximately twelve blocks from the old one.
The only question before the Board and before the court, posed by the protestants, was whether the grant of the transfer would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within 500' of the place proposed to be licensed. The Board exercised its discretion under the law in deciding this question against the protestants. The protestants appealed and the court below decided
[ 207 Pa. Super. Page 342]
that the action of the Board was an abuse of discretion and reversed its order.
The law is well settled that hearings de novo, so designated by the legislature, are so far as the Liquor Code is concerned, in fact, not de novo and unless new facts can be found by the court the decision of the Board must stand unless there is a clear abuse of discretion. Club Oasis, Inc. Liquor License Case, 200 Pa. Superior Ct. 439, 444, 188 A.2d 792 (1963). See collection of cases page 445, footnote 3.
"It is settled law that the function of the court of quarter sessions on appeal is not to substitute its discretion for that of the Board, but merely to determine whether the Board abused its administrative discretion: Booker Hotel Corporation Liquor License Case, 175 Pa. Superior Ct. 89, 103 A.2d 486. 'Discretion . . . 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 . . . 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 . . . While it is upon the record made at the hearing de novo that the court of quarter sessions determines whether or not the Board abused its discretion . . . the court of quarter sessions may not substitute its discretion for that of the Board': Bierman Liquor License Case, 188 Pa. Superior Ct. 200, 145 A.2d 876." Gismondi Liquor License Case, 199 Pa. Superior Ct. 619, 626, 186 A.2d 448 (1962).
At one time the Board did not have the discretion to deny transfers on the ground that such transfer threatened the quiet character of the neighborhood. ...