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PAXON MAYMAR v. COMMONWEALTH PENNSYLVANIA (11/27/73)

decided: November 27, 1973.

PAXON MAYMAR, INC., APPELLANT,
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Delaware County in case of In Re: Appeal of Paxon Maymar, Inc., Paxon Hollow Country Club, Paxon Hollow Road, Media, Pennsylvania, No. A31, P-359 March Sessions 1973.

COUNSEL

John J. McCreesh, III, with him McCreesh & McCreesh, for appellant.

J. Leonard Langan, Assistant Attorney General, with him Alexander J. Jaffurs, Assistant Attorney General, and Israel Packel, Attorney General, for appellee.

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

Author: Mencer

[ 11 Pa. Commw. Page 137]

Paxon Maymar, Inc. (Paxon), is the lessee of the clubhouse, snack bar, restaurant, swimming pool, and associated facilities of the Paxon Hollow Country Club, a municipally owned golf course. The Marple Township Municipal Authority is the lessor of these facilities. The Township of Marple operates the golf course and pro shop.

On March 24, 1972, Paxon applied to the Pennsylvania Liquor Control Board (Board) for a restaurant liquor license to enable it to sell liquor at the leased clubhouse. On December 8, 1972, the Board refused Paxon's application. The Board concluded that (1) the grant of a license would adversely affect the welfare, peace, health and morals of the neighborhood within a radius of 500 feet and (2) the May 1971 referendum election held in the Township of Marple, in which the majority of the voting electors voted against the granting of liquor licenses to restaurants in the

[ 11 Pa. Commw. Page 138]

Township of Marple, prevented the license from being issued to Paxon.

Paxon appealed from the Board's order to the Court of Common Pleas of Delaware County which held a hearing and affirmed the Board. This appeal followed and we reverse.

A reading of the record in this case brings quickly to mind what we stated in Lousil, Inc. v. Liquor Control Board and City of Philadelphia, 5 Pa. Commonwealth Ct. 33, 35, 288 A.2d 560 (1972): "Once again we are urged . . . to strain the construction of an Act of the General Assembly . . . ; and to do so, furthermore, with reference to a matter readily subject to amelioration by the Legislature, if that be its will."

In Pittaulis Liquor License Case, 444 Pa. 243, 248, 282 A.2d 388, 390 (1971), quoting with approval from Obradovich Liquor License Case, 386 Pa. 342, 345-46, 126 A.2d 435, 436-37 (1956), our Supreme Court stated: "'In the initial grant of a license the only matters to be considered by the Board are the fitness of the applicant, whether he alone is pecuniarily interested, whether the premises meet the requirements of the Code, and whether the hotel or restaurant for which the license is applied comes within the definitions of those terms in Section 102 of the Code. A license may not be refused on grounds not embraced in the statute.'"

Here the applicant was acknowledged to be of good character with financial ability and able to fulfill the Code requirements. Furthermore, the record does not support the Board's finding that approval of Paxon's application would be detrimental to the welfare, health, peace and morals of the neighborhood within a radius of five hundred feet. The record discloses that no person lives within five hundred feet of the premises ...


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