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B.J.R. MACE v. AQUA BAR & LOUNGE (05/20/77)

decided: May 20, 1977.

IN RE: B.J.R. MACE, INC. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD
v.
AQUA BAR & LOUNGE, INC., APPELLANT. IN RE: AQUA BAR & LOUNGE, INC. COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA LIQUOR CONTROL BOARD V. AQUA BAR & LOUNGE, INC., APPELLANT



Appeals from the Orders of the Pennsylvania Liquor Control Board and the Court of Common Pleas of Philadelphia County in cases of Transfer Application of B.J.R. Mace, Inc., License No. R-2698; and In Re: Aqua Bar & Lounge, Inc., No. 2132 December Term, 1975.

COUNSEL

Abe Lapowsky, for appellant.

J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellee.

Judges Crumlish, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 30 Pa. Commw. Page 255]

The Court of Common Pleas of Philadelphia County quashed Aqua Bar & Lounge, Inc.'s appeal from the action of the Pennsylvania Liquor Control Board (Board) approving the transfer of a liquor license on the ground that Aqua had no standing. We reverse the order below.

Aqua was once the holder of a restaurant liquor license which had been lodged with the Liquor Control Board for safekeeping. On January 16, 1975 the Internal Revenue Service (IRS) issued a Notice of Seizure of the appellant's property rights in the liquor license pursuant to provisions of the Internal Revenue Code, 26 U.S.C. § 6331.*fn1 On March 6, 1975 the IRS issued a Notice of Sealed Bid Sale of Aqua's

[ 30 Pa. Commw. Page 256]

    right in the license. The bids submitted were opened on March 20, 1975, at which time the IRS sold the license to one Joseph B. Saltz. Saltz subsequently assigned all of his right, title and interest in the liquor license to B.J.R. Mace, Inc. which, in turn, filed an application with the Board for the transfer of this license to premises at 1714 Cherry Street, Philadelphia, Pennsylvania. Mace's application was executed for Aqua by an Acting District Director of the IRS.

On August 7, 1975 Aqua requested the Board to conduct a hearing in which it might challenge the Mace application. The Board refused the request. On December 8, 1975 the Board approved the transfer of the license to Mace, and on December 19 Aqua appealed this action to the Court of Common Pleas of Philadelphia County with the result hereinbefore mentioned.

Section 464 of the Liquor Code,*fn2 47 P.S. § 4-464, describes the persons who may appeal the Board's action with respect to applications for licenses or the renewal or transfer thereof as:

Any applicant . . . who is aggrieved . . . or any church, hospital, charitable institution, school or public playground located within three hundred feet of the premises applied for, aggrieved by the action of the board in granting the issuance of any such license or the transfer of any such license, may take an appeal limited to the question of such grievance. . . .

Because Aqua was not an applicant or any of the institutions named in Section 464, the court below concluded that it had no right to appeal the Board's action transferring its licenses. Clearly, Aqua had a direct interest in the matter adjudicated by ...


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