Appeal from the Order of the Court of Common Pleas of Fayette County in case of In Re: Appeal of Improved Benevolent Protective Order of Elks of the World, Summit Lodge No. 115 of Uniontown, Pennsylvania, No. 322 Civil Term, 1976.
J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellant.
William J. Franks, for appellee.
President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Blatt.
[ 30 Pa. Commw. Page 527]
This is an appeal by the Pennsylvania Liquor Control Board (Board) from an order of the Court of Common Pleas of Fayette County which reversed a Board decision denying an application for a club liquor license.
Summit Lodge No. 115 of the Improved Benevolent Protective Order of Elks (Lodge) filed an application with the Board for a club liquor license for their premises located at 94 Feather Avenue, South Union Township, Uniontown. After a hearing at which the Lodge presented evidence, the Board refused to grant the license, finding inter alia that the premises proposed to be licensed were located within 300 feet of the Fayette County Housing Authority (Authority) public playground. An appeal by the Lodge to the Court of Common Pleas was sustained, that court finding
[ 30 Pa. Commw. Page 528]
that the Authority had indicated that it had no objection to the granting of the license, even though the Lodge was located within 300 feet of the Authority's public playground. This appeal followed.
Section 404 of the Liquor Code,*fn1 47 P.S. § 4-404, allows the Board in its discretion to refuse to grant a license "if such place proposed to be licensed is within three hundred feet of any church, hospital, charitable institution, school, or public playground." (Emphasis added.) We have previously recognized that, by this section, the Legislature has given the Board discretion to approve or refuse license applications or applications to transfer licenses and that the function of the lower court on appeal is not to substitute its discretion for that of the Board, but merely to determine whether the Board abused its administrative discretion. Bilinsky v. Liquor Control Board, 7 Pa. Commonwealth Ct. 312, 315, 298 A.2d 698, 699 (1972). In this case we believe that the lower court did substitute its discretion for that of the Board and that its order must therefore be reversed.
The lower court noted here, of course, that the Authority had no objection to the licensing, but this was a factor properly to be considered by the Board in exercising its discretion and we have previously held that the absence of objection does not control the Board's decision in these matters. See Home Aid Association of John C. Tressler Post v. Pennsylvania Liquor Control Board, 25 Pa. Commonwealth Ct. 271, 273, 360 A.2d 834, 835 (1976). It is uncontested here that the Authority's playground is within 300 feet of the premises which the Lodge proposes to license, and the lower court described the playground here concerned as a public one in its findings. The Lodge
[ 30 Pa. Commw. Page 529]
argues that the court was mistaken in so doing, but our review of the record establishes that the playground is owned by the Authority which is a public body and also that, although the playground is intended to be used by the tenants of the Authority's nearby housing, the use of the playground by other persons is in no way restricted. Under these circumstances, we believe the lower court correctly described the playground as a public one. And, inasmuch as one of the recognized purposes of the Liquor Code is to discourage the existence of places where alcoholic beverages ...