Appeal from the Order of the Court of Common Pleas of Westmoreland County in case of Latrobe Country Club v. Pennsylvania Liquor Control Board, No. 1330 of 1975.
J. Leonard Langan, Assistant Attorney General, with him Harry Bowytz, Chief Counsel, and Robert P. Kane, Attorney General, for appellant.
Bernard F. Scherer, with him Gene E. McDonald, and Lightcap, McDonald & Moore, for appellee.
Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. President Judge Bowman and Judges Crumlish, Jr., Kramer, Wilkinson, Jr., Mencer, Rogers and Blatt. Opinion by Judge Crumlish, Jr. Judge Mencer dissents. Concurring Opinion by Judge Wilkinson, Jr. Dissenting Opinion by President Judge Bowman. Judge Blatt joins in this dissent.
[ 31 Pa. Commw. Page 267]
The Pennsylvania Liquor Control Board (Board) appeals an order of the court of common pleas which sustained an appeal by the Latrobe Country Club (Appellee) from a Board order refusing to extend Appellee's license to a half-way house 1,000 feet from the building for which the club license is presently issued.
In support of its order denying the extension of the club license to Appellee's other building, the Board made but one finding of fact which states:
[ 31 Pa. Commw. Page 268]
The proposed new area is not adjacent to or directly connected with the presently licensed premises.
On appeal, the court below relied upon Section 404 of the Liquor Code,*fn1 relating to issuance and transfer of hotel, restaurant and club liquor licenses and the discretion vested in the Board with respect to approval or disapproval of a license under this section. The section states:
Upon receipt of the application, the proper fee and bond, and upon being satisfied of the truth of the statements in the application that the applicant is the only person in any manner pecuniarily interested in the business so asked to be licensed and that no other person will be in any manner pecuniarily interested therein during the continuance of the license, except as hereinafter permitted, and that the applicant is a person of good repute, that the premises applied for meet all the requirements of this act and the regulations of the board, that the applicant seeks a license for a hotel, restaurant or club, as defined in this act, and that the issuance of such license is not prohibited by any of the provisions of this act, the board shall, in the case of a hotel or restaurant, grant and issue to the applicant a liquor license, and in the case of a club may, in its discretion, issue or refuse a license: Provided, however, That in the case of any new license or the transfer of any license to a new location the board may, in its discretion, grant or refuse such new license or transfer if such place proposed to be licensed is within three hundred feet of any church, hospital, charitable institution, school,
[ 31 Pa. Commw. Page 269]
or public playground, or if such new license or transfer is applied for a place which is within two hundred feet of any other premises which is licensed by the board, or if such new license or transfer is applied for a place where the principal business is the sale of liquid fuels and oil: And provided further, That the board shall refuse any application for a new license or the transfer of any license to a new location if, in the board's opinion, such new license or transfer would be detrimental to the welfare, health, peace and morals of the inhabitants of the neighborhood within a radius of five hundred feet of the place proposed to be licensed: And provided further, That the Board shall not issue new licenses in any license district more than twice each license year, effective from specific dates fixed by the board, and new licenses shall not be granted, except for hotels as defined in this act, unless the application therefor shall have been filed at least thirty days before the effective date of the license: And provided further, That nothing herein contained shall prohibit the board from issuing a new license for the balance of any unexpired term in any license district to any applicant in such district, who shall have become eligible to hold such license as the result of legislative enactment, when such enactment shall have taken place during ...