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BILINSKY v. LIQUOR CONTROL BOARD (12/20/72)

decided: December 20, 1972.

BILINSKY, ET AL.
v.
LIQUOR CONTROL BOARD



Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of In Re: Appeal of Peter J. and Genevieve H. Bilinsky, t/a Pete and Jean, No. 1906 February Term, 1971.

COUNSEL

Alexander J. Jaffurs, Assistant Attorney General, with him Albert B. Miller, Special Assistant Attorney General, and J. Shane Creamer, Attorney General, for appellant.

D. T. Spagnoletti, for appellees.

Judges Crumlish, Jr., Wilkinson, Jr., and Blatt, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 7 Pa. Commw. Page 313]

This is an appeal by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common

[ 7 Pa. Commw. Page 314]

Pleas of Philadelphia County reversing an order of the Board refusing to transfer a restaurant liquor license.

In August of 1970 the Bilinskys filed an application with the Board to transfer a restaurant liquor license to the premises at 458 East Girard Avenue, Philadelphia. A hearing on the application was held in December of 1970 at which both the applicants and protestors presented evidence. The Board considered the evidence and refused to grant the transfer application for the stated reasons that: (1) the premises proposed to be licensed are located within two hundred feet of other licensed establishments; (2) the premises proposed to be licensed are located within three hundred feet of the First Presbyterian Church of Kensington parking lot; and (3) the granting of this license will adversely affect the welfare, health, peace and morals of the neighborhood within a radius of five hundred feet.

An appeal by the applicants to the Court of Common Pleas was sustained and the order of the Board was reversed. The Board now appeals that decision to this Court.

The Board here contends that the lower court erred in substituting its discretion for that of the Board in sustaining the appeal of the applicants. The court below determined that (1) the proposed taproom would be within three hundred feet of a church parking lot but that it was not contiguous to the church and therefore was not part of the church; (2) that although there are other licensed premises within two hundred feet of the premises in question, these establishments were not in the same license class as the proposed taproom and therefore the two hundred foot restriction was not applicable in this instance; and (3) that because the area was zoned commercial and there were

[ 7 Pa. Commw. Page 315]

    other commercial uses nearby, it was an abuse of discretion for the Board to determine that the proposed taproom would be detrimental to the morals of the community. We disagree with the court below and ...


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