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LIQUOR CONTROL BOARD v. RAUWOLF (09/03/71)

decided: September 3, 1971.

LIQUOR CONTROL BOARD
v.
RAUWOLF



Appeal from order of the Court of Common Pleas of Montgomery County at No. 79, April Term, 1970, in case of Re: John Rauwolf, 2 Old York Road, Upper Moreland Township, Willow Grove, Pa.

COUNSEL

Albert B. Miller, Special Assistant Attorney General, with him Thomas J. Shannon, Assistant Attorney General, and Fred Speaker, Attorney General, for appellant.

Abraham J. Levinson, with him Hillel S. Levinson, for appellee.

President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Manderino, Mencer and Rogers. Opinion by Judge Manderino.

Author: Manderino

[ 3 Pa. Commw. Page 97]

The facts in this case were stipulated and are not in dispute. The Pennsylvania Liquor Control Board issued an order granting the transfer of a restaurant liquor license (No. R18410) upon a prior approval basis to John Rauwolf for premises located at 2 Old York Road in Upper Moreland Township. Rauwolf then undertook to secure the building and zoning permits required for the necessary alterations and repairs. After he was unable to secure the permits, Rauwolf appealed to the Court of Common Pleas of Montgomery County which sustained the action of the Zoning Board of Adjustment in refusing Rauwolf the zoning permits. Because Rauwolf was not able to secure the required permits, he could not proceed with the alterations and repairs. Under an amended order of the Liquor Control Board, Rauwolf was to complete the alterations and repairs to the premises on or before January 31, 1970. Almost six months before the deadline, Rauwolf entered into an agreement for the sale and transfer of his license to Restaurant Systems, Inc., for use at a new location at 517-19 Old York Road.

On September 12, 1969, almost four months before Rauwolf's deadline involving the premises at 2 York Road, the Board refused to approve the transfer of the license to Restaurant Systems, Inc., for use at 517-19 Old York Road.

The Board did not find any lack of diligence on the part of Rauwolf or any negligence in his failure to make the alterations and repairs on the premises at 2 Old York Road. The sole reason why the Board refused to allow Rauwolf to transfer his license to a new owner for use at different premises was because the

[ 3 Pa. Commw. Page 98]

Board felt that it was not authorized to approve such transfer under Section 403(a) of the Liquor Code. (Act of April 12, 1951, P.L. 90, as amended by the Act of November 19, 1959, P.L. 1546, ยง 1, 47 P.S. 4-403(a).

After the Board's refusal to approve the requested transfer, the Board also refused to renew on December 2, 1969 Rauwolf's license because he had not completed the alterations and repairs at the premises located at 2 Old York Road, even though it was impossible for Rauwolf to alter and repair the premises since he was not able to secure the necessary permits.

The lower court held that the Board improperly refused Rauwolf's request for a transfer of his license to Restaurant Systems, Inc., for use at premises located at 517-19 Old York Road and also improperly refused to renew Rauwolf's license following the Board's disapproval of his requested transfer. We agree with the lower court that the Board did have authority to approve the transfer of Rauwolf's license to a new owner at a new location. Section 468 of the Liquor Code (47 P.S. 4-468) provides that: "The board, upon payment of the transfer filing fee and the execution of a new bond, is hereby authorized to transfer any license issued by it under the provisions of this article from one person to another or from one place to another, or both, within the same municipality as the board may determine."

The above Section contains no restriction on the Board's authority to approve the transfer of a license to a ...


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