Appeal from the Order of the Court of Common Pleas of Allegheny County in case of Re: Michael C. Prezioso, St. Clair Lounge, 1100 Bower Hill Road, Pittsburgh, Pennsylvania, No. S.A. 295 of 1976.
James P. Deeley, with him Harry Bowytz, Chief Counsel, and J. Leonard Langan, Assistant Attorney General, for appellant, Pennsylvania Liquor Control Board.
Donald C. Bush, with him Dale P. Frayer, and Anderson, Moreland & Bush, for appellant, Mt. Lebanon School District.
John E. Grasberger, with him S. David Litman, and Litman, Litman, Harris & Specter, P.A., for appellee.
Judges Crumlish, Jr., Wilkinson, Jr. and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
The Pennsylvania Liquor Control Board (Board) appeals a decision of the Court of Common Pleas of Allegheny County ordering the Board to issue a restaurant liquor license to the appellee (applicant). We reverse and reinstate the order of the Board refusing the application.
In 1950 applicant's parents obtained a malt beverage dispenser license for their family restaurant,
located in Mount Lebanon Township (Township). The license and the business were transferred to the applicant in 1974. After the passage of a referendum allowing over the bar liquor sales in the Township in 1975, applicant sought a restaurant liquor license. His application, which was opposed by the appellant, Mt. Lebanon School District, was denied by the Board on two grounds: that the premises are located within 200 feet of other establishments licensed by the Board and that the premises are also within 300 feet of the St. Clair Memorial Hospital and the Herbert Hoover Elementary School.*fn1 The lower court sustained the appeal of the applicant, finding the Board's discretionary power to refuse a license pursuant to Section 404 of the Code, does not apply when the holder of a malt beverage license applies for a restaurant liquor license following the passage of a municipal referendum, reasoning that such a license is not a "new license."
We must agree with the Board that there is no support within the language of Section 404 or case law for this interpretation of the Code. We find the procedural posture of this case on all fours with our decision in Appeal of Rusch, 32 Pa. Commonwealth Ct. 578, 379 A.2d 1375 (1977) where we held that an application for a restaurant liquor license by the holder of a malt beverage dispenser license must be
treated as an application for a new license subject to the restrictions of Section 404. Indeed, able counsel for ...