Appeal from the Order of the Court of Common Pleas of Philadelphia County in case of Commonwealth v. Two Guy's Delicatessen, Inc., No. 2006 August Term, 1973.
J. Leonard Langan, Assistant Attorney General, with him Welton J. Fischer, Assistant Attorney General, and Israel Packel, Attorney General, for appellant.
Samuel F. Pepper, for appellee.
Judges Kramer, Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Kramer.
[ 13 Pa. Commw. Page 603]
This is an appeal filed by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common Pleas of Philadelphia County, dated September 13, 1973, sustaining the appeal of Two Guy's Delicatessen, Inc. (Two Guy's) from an adjudication of the Board dated July 23, 1973 wherein Two Guy's application for the transfer of a Retail Dispenser Eating Place license was refused.
This case had its beginning when, on February 26, 1973, Two Guy's filed an application with the Board
[ 13 Pa. Commw. Page 604]
for a transfer of a retail dispenser's eating place license to its then existing delicatessen-restaurant located in Philadelphia. After hearing, the Board found as a fact that "The premises proposed to be licensed are located within 200' of other licensed establishments." The record indicates that the Two Guy's establishment is 75 feet across the street from another licensed premises.
Upon appeal to the court below, a de novo hearing was held, after which the court made two findings. First, it found that the area to which the transfer was requested to be made was located in a "commercial area." Secondly, the court found that there were no other delicatessens within 200 feet of the proposed premises. The court made no finding on whether the Two Guy's premises were within any distance of another Board-licensed premises. It should be pointed out that the license which Two Guy's has asked to be transferred involves a retail dispenser license, which permits the sale of beer but not liquor. The licensee, which according to the record is located within 200 feet from Two Guy's has a restaurant liquor license which permits the sale of beer, liquor and other alcoholic beverages. It should also be noted here that the statute requires a restaurant liquor licensee to sell alcoholic beverages only in that part of its establishment used for the serving of food to guests. See Liquor Code, Act of April 12, 1951, P.L. 90, § 406, as amended, 47 P.S. § 4-406.
The pertinent provisions of the Liquor Code upon which this case must turn are found in Sections 432(d) and 464, 47 P.S. §§ 4-432(d), 4-464. The pertinent provisions of these sections read as follows:
Section 432(d) pertaining to applications for retail dispenser (beer only) license: "The board shall, in its discretion, grant or refuse any new license or the transfer of ...