Appeal from the Order of the Court of Common Pleas of Bucks County in case of Appeal of Court House Motor Inn, Inc., No. 1507-MM-72.
Albert B. Miller, Special Assistant Attorney General, with him Alexander J. Jaffurs, Assistant Attorney General, and Israel Packel, Attorney General, for appellant.
Derek J. Reid, with him William H. Eastburn, III, and Eastburn and Gray, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Rogers.
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This case requires us to decide whether the practice of the Pennsylvania Liquor Control Board, supported by the courts, of refusing to issue or to transfer licenses to properties subject to deed restrictions against the sale of intoxicating drink, should now be disapproved. The court below concluded that it should and we agree.
The appellee, Court House Motor Inn, Inc., applied to the Liquor Control Board for a new hotel liquor license for its 40 unit motel and restaurant located in Doylestown. The appellee's property is a small part of a tract of land which in 1926 was subjected to the restriction "[t]hat no . . . drinking saloon or any building for the . . . sale of spiritous or malt liquors or wine of any kind or description whatever . . . shall be erected on any part thereof." Eighty-eight conveyances of properties have been made from the tract since 1926. Of these, those closest to the appellee's property are used for a variety of commercial purposes. The sole reason for the Board's refusal of the license was the deed restriction.
The Superior Court consistently held that the Board might refuse to issue or transfer a license where a covenant
[ 13 Pa. Commw. Page 166]
in the deed for the premises sought to be licensed prohibited the use thereof for the sale of intoxicating liquors. J.C. Grille, Inc. Liquor License Case, 181 Pa. Superior Ct. 456, 124 A.2d 659 (1956); McGettigan's Liquor License Case, 131 Pa. Superior Ct. 280, 200 A. 213 (1938); Cheris's Liquor License Case, 127 Pa. Superior Ct. 355, 193 A. 162 (1937).
Some months after the decision in J.C. Grille, Inc. Liquor License Case, supra, the Supreme Court decided that the Liquor Control Board did not have a discretion to refuse the transfer of a license because of remonstrances of neighbors or other considerations not set out in the Liquor Code.*fn1 Obradovich Liquor License Case, 386 Pa. 342, 126 A.2d 435 (1956). Mr. Chief Justice Stern succinctly expressed the court's view as follows: "A license may not be refused on grounds not embraced in the statute." 386 Pa. at 346, 126 A.2d at 437. Nevertheless, the Superior Court in Royal Liquor License Case, 190 Pa. Superior Ct. 643, 155 A.2d 234 (1959) again decided that the Board could lawfully refuse to issue a license where there was a restriction in the deed to the property prohibiting its use for the sale of liquor.
The Obradovich holding seems not to have been presented for the Superior Court's consideration in Royal. In Cohen Liquor License Case, 199 Pa. Superior Ct. 8, 184 A.2d 387 (1962), it was; but the Superior Court adhered to its previous holdings with the statement: "We are of the opinion, however, that the deed restriction cases constitute a well defined exception to the general statement in the Obradovich opinion. It should be noted that the Obradovich case did not involve a deed restriction. It should ...